HOCHBERG, District Judge

NOT FOR PUBLICATION

CLOSED

OPINION & ORDER HOCHBERG , District Judge :

I. INTRODUCTION

Petitioner, Robert Desrosiers, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his detention by Immigrations and Customs Enforcement ("ICE") pursuant to 8 U.S.C. § 1226(c). Petitioner contends that he is not subject to mandatory detention by ICE under § 1226(c).

II. FACTUAL AND PROCEDURAL HISTORY

Petitioner is a native and citizen of Haiti, who holds lawful permanent resident status in the United States. In November 2008, petitioner pled guilty to one count of conspiracy to defraud the government in violation of 18 U.S.C. § 286. Petitioner pled guilty to conspiring to submit fraudulent tax returns involving losses totaling more than $70,000 and faced a statutory maximum prison sentence of 10 years. In June 2009, petitioner was sentenced to a term of three years' probation, which he began serving immediately. On July 19, 2011, petitioner was detained by ICE pending deportation. On August 8, 2011, an immigration judge concluded that detention of petitioner was mandatory and denied petitioner's request for a bond determination. Petitioner filed the present petition on August 11, 2011, contending that he is not subject to mandatory detention because he was not detained by immigration authorities immediately upon release from incarceration.

Petitioner was ordered to be removed from the United States in late September by the immigration judge; he filed an appeal to the Board of Immigration Appeals on October 8, 2011. On October 18, 2011, this Court ordered the parties to file supplemental briefs to this Court. The supplemental submissions of the parties stated, inter alia, that briefing was due on November 25, 2011 in connection with petitioner's appeal of his deportation order to the Board of Immigration Appeals.

III. DISCUSSION

The sole issue before this Court is whether Petitioner's detention status pending a final order of deportation is governed by 1226(c)(1) or not. Petitioner argues that he is not subject to mandatory detention pursuant to 8 U.S.C. § 1226(c) because, although his crime is one that is covered by the mandatory detention provisions, he is not subject to those provisions because he was not detained "when released from custody"( because he got a sentence of probation). The government contends that petitioner is subject to mandatory detention under a line of precedent established by the Board of Immigration Appeals ("Board"). The government argues that the Court should defer to the Board's interpretation of § 1226(c) under the principles set forth in Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

Aliens who have been convicted of certain enumerated crimes are subject to mandatory detention under § 1226(c)(1)(B). § 1226(c) reads, in pertinent part:

(c) Detention of criminal aliens

(1) Custody

The Attorney General shall take into custody any alien who -

(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,

(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,

(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence [sic] to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,

when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

§ 1226(c)(2) provides that "an alien described in paragraph (1)" shall be detained. The question before the Court is whether petitioner falls within the scope of § 1226(c)(1). His argument essentially is a timing question. He was arrested for an enumerated crime. If he had been sentenced to prison, then he clearly would have been detained upon release from prison. Had he been arrested and immediately released "on probation", he clearly would have been subject to the mandatory detention provisions of 1226(c)(2). His argument is solely that, even though the statute clearly says that a release on probation is covered, because he was sentenced to probation and served his probationary sentence well after his arrest, he was not detained "when . . . released" on probation and thus is not subject to the mandatory detention provisions.

Under Chevron, a two step analysis applies. The first step is to determine "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43. The second step applies if "Congress has not directly addressed the precise question at issue." Id. at 843. If the statute "is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. In such a case, a Court "need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Id. at 843, n. 11.

A. CHEVRON DEFERENCE

Turning to the first step of the Chevron analysis, other federal courts considering § 1226 have found that there are "two plausible interpretations to the phrase 'an alien described in paragraph (1)' . . . (1) it refers only to the classes of aliens described in section 1226(c)(1)(A) through (D); or (2) it refers to the classes of aliens described in section 1226(c)(1)(A) through (D) who are taken into custody 'when . . . released.'" Sulayo v. Shanahan, 2009 WL 3003188, at *4 (S.D.N.Y. Sept. 15, 2009); see also Matter of Rojas, 23 I. & N. Dec. 117, 120 (BIA 2001). Another court in this district recently reached the same conclusion in a virtually identical action. See Diaz v. Muller, 2011 WL 3422856, at *1-3 (D.N.J. Aug. 4, 2011). The Diaz Court noted, "[t]he fact that courts have disagreed so in interpreting the statutory language supports the conclusion that it is ambiguous." Id. at *3. The Diaz Court then deferred to the BIA and denied a writ of habeas corpus filed by a lawful permanent resident who committed an enumerated offense, received a sentence of probation, and was detained after completing that sentence. Id. at *1-4.

Because the statute is ambiguous with respect to petitioner's situation, the question becomes whether the interpretation of § 1226(c) by the Board of Immigration Appeals ("Board") applied by the immigration judge in petitioner's case is "based on a permissible construction of the statute." Chevron, 467 U.S. at 843. In Matter of Rojas, the Board concluded that Congress was not attempting to restrict mandatory detention only to aliens detained immediately at the time of their release from criminal custody. Rather, the Board found that an alien convicted of an enumerated offense is subject to mandatory detention under § 1226(c) even if there is a gap between his release from custody and his detention by ICE. 23 I. & N. Dec. 117, 123-24, 127 (BIA 2001). In Matter of Kotliar, the Board concluded that an alien who received a probationary sentence and was detained while on probation was subject to mandatory detention because "an alien who is released from criminal custody (including from an arrest preceding a conviction[)] . . . is subject to mandatory detention . . . even if the alien is not immediately taken into custody by immigration officials when released from incarceration." 24 I. & N. Dec. 124, 125 (BIA 2007) (citing Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001); Matter of West, 22 I. & N. Dec. 1405 (BIA 2000)).

To be entitled to deference under Chevron, the Board's interpretation need not be "the only one it permissibly could have adopted . . . or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. Chevron, 467 U.S. at 843, n.11. As applied to petitioner, the Board's interpretation of § 1226(c) is based on "a permissible interpretation of an ambiguous text, and one that is supported by logic and the legislative history of the statute" and is therefore entitled to deference. Sulayo v. Shanahan, 2009 WL 3003188, at *3-7 (S.D.N.Y. Sept. 15, 2009); see also, Diaz, 2011 WL 3422856, at *2-3 (deferring under Chevron to Rojas and denying a habeas petition filed by a petitioner who was sentenced to probation for three years for committing an offense within the scope of § 1226(c)(1)(B), completed his sentence, and was subsequently detained by ICE). This Court agrees with the Diaz Court, which had before it essentially the same case. In this case, ICE acted promptly and detained petitioner prior to the completion of his criminal sentence. Accordingly, this case does not involve any gap, let alone a lengthy gap, between petitioner's ongoing sentence and his initial detention by ICE.

1. Legislative History and Congressional Intent

§ 1226(c) was adopted by Congress "against a backdrop of wholesale failure by the INS to deal with increasing rates of criminal activity by aliens." Demore v. Hyun Joon Kim, 538 U.S. 510, 513 (2003). When considering the provision, Congress "had before it evidence that one of the major causes of the INS' failure to remove deportable criminal aliens was the agency's failure to detain those aliens during their deportation proceedings." Id. The interpretation advanced by petitioner - which is based solely on the fortuity of what type of sentence was imposed for the crime - would "work to undo what, according to the Supreme Court, Congress was trying to accomplish when it enacted 8 U.S.C. § 1226(c)." Diaz, 2011 WL 3422856, at *3. Petitioner's interpretation of the statute would also be in tension with the concern of Congress not simply with "detaining and removing aliens coming directly out of criminal custody" but "with detaining and removing all criminal aliens." Rojas, 23 I. & N. Dec. at 122.

Petitioner's argument based on the legislative history of § 1226(c) and In re Matter of Eden, 20 I. & N. Dec. 209 (BIA 1990) does not alter this conclusion. Matter of Eden rejected an interpretation of the predecessor provision of § 1226(c), which required detention of "any alien convicted of an aggravated felony upon completion of the alien's sentence," that would have prevented detention until all components of the sentence, including any periods of probation, had been completed. Id. at 211-14. Matter of Eden was based in significant part on the Board's conclusion that by enacting the mandatory detention provision, Congress sought to detain criminal aliens "without release throughout the pendency of their deportation proceedings." Id. at 213. By codifying a Board ruling rejecting a statutory interpretation that would have resulted in a loophole in the predecessor provision to § 1226(c), Congress certainly did not demonstrate its intent to create a new loophole excluding from mandatory detention aliens who were sentenced to probation rather than prison for crimes that carried potential prison sentences.

Petitioner has advanced no explanation as to how excluding from mandatory detention aliens who are convicted of committing enumerated crimes but are sentenced to probation is consistent with the intent of Congress in enacting § 1226(c), and there appears to be no such explanation. As the Diaz Court observed "[i]t is on this point that Petitioner's position is weakest: this Court questions on what basis one could argue that Congress, when seeking to authorize the detention of criminal aliens so that they might be deported, would have intended that criminal aliens not immediately detained should then not ever be detained." 2011 WL 3422856, at *3. Indeed, the tension between petitioner's position and the apparent intent of Congress in enacting § 1226(c) is even sharper in this case than it was in Diaz. Like this case, Diaz involved an alien who had received a sentence of probation for committing an enumerated offense. Id. at *1. However, the petitioner in Diaz had completed his sentence of probation before being detained by ICE. Id. In contrast, in this case, there has been no gap between the completion of petitioner's sentence and his detention by ICE, which occurred while petitioner was still serving his criminal sentence.

B. CONSTITUTIONAL AVOIDANCE

Petitioner contends that the rule of constitutional avoidance applies here because petitioner will likely be detained for a prolonged period of time in order to test his construction of the statute at issue. Pursuant to that rule, "when an Act of Congress raises a serious doubt as to its constitutionality" a court should "first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (quotations omitted). Petitioner argues that § 1226(c) "authorizes only detention for a reasonable period of time" after which due process "requires that the Government establish that continued detention is necessary to further the purposes of the detention statute." Diop v. ICE/Homeland Security, 656 F.3d 221, 223 (3d Cir. 2011). Petitioner contends that his detention is likely to be prolonged, in part because he has substantial arguments against removability, and that his detention has already extended beyond the 90 days contemplated by the Supreme Court in Demore.

According to the submissions of the parties, petitioner was detained on July 19, 2011; an immigration judge ruled that petitioner was deportable in late September, 2011 (two months after detention) and appellate briefing was due to be completed in his appeal to the Board on November 25, 2011. Under these circumstances, the rule of constitutional avoidance does not apply. See Demore, 538 U.S. at 513, 529-30 (concluding that detention of a permanent resident for six months under § 1226(c) did not violate due process and noting that "the detention at stake under § 1226(c) lasts . . . about five months in the minority of cases in which the alien chooses to appeal"); Diop, 656 F.3d at 234-35 (concluding that detention for nearly three years was unconstitutional, but declining to adopt a proposed rebuttable presumption that detention for up to six months is reasonable while detention for longer than six months is unreasonable).

IV. ORDER

For the foregoing reasons it is on this 30th day of December, 2011,

ORDERED that the petition for a writ of habeas corpus is DENIED. The clerk of the court is directed to close this case.

/s/ Faith S. Hochberg

Hon. Faith S. Hochberg, U.S.D.J.