Opinion
CV 04-566-PA.
May 7, 2004
ORDER
Ronnayuth Boonkue brings this petition for writ of habeas corpus under 28 U.S.C. § 2241. I grant the petition and order that respondents release petitioner on the previously set conditions.
BACKGROUND
Petitioner, who is a Thai citizen, arrived in the United States at age ten in November 1980. He is a lawful permanent resident of the United States.In October 1994, petitioner was convicted in a California state court of issuing checks with insufficient funds, a felony. Petitioner was sentenced to two years' incarceration, but sentence was suspended and he received three years' probation.
In December 1997, petitioner's probation was revoked. In March 1998, petitioner's original sentence was reinstated. Petitioner was released in January 1999 for good behavior, and successfully completed one year of probation. The record indicates that petitioner has not been arrested or convicted of any crimes since then.
Petitioner is married to a United States citizen and has two United States citizen children. In 2002, petitioner and his family moved to Oregon. He has been living in Florence, Oregon since August 2003, where he manages a Thai restaurant. Petitioner's wife is half-owner of the restaurant.
In January 2004, petitioner returned from a two-week vacation and business trip in Thailand When petitioner arrived in San Francisco, Department of Homeland Security agents placed him in secondary inspection and paroled him into the United States to complete the inspection in Portland Petitioner appeared for scheduled appointments on February 17, 2004, March 18, 2004, and April 1, 2004.
Agents from the Bureau of Immigration and Customs Enforcement (BICE) took petitioner into custody on April 1, 2004. BICE charged that petitioner was removable for committing a crime of moral turpitude.
BICE initially set a $10,000 bond for petitioner's release. When petitioner's wife attempted to pay the bond on April 5, 2004, BICE agents told her that the bond had been revoked because Thai citizens were required to clear a security check.
On April 15, 2004, petitioner sought reinstatement and reduction of bond. Petitioner contends that he is "prima facie eligible for cancellation of removal, Section 212(c) relief, and Section 212(h) waiver of inadmissibility." Pet. at 2.
Petitioner passed the security check. On April 19, 2004, BICE stated that it would set a $10,000 bond for petitioner and ordered that he be transported to Portland from NORCOR for possible release on April 20, 2004. BICE then reversed itself, concluding that petitioner was subject to mandatory detention under 8 U.S.C. § 1226(c). Petitioner is now being held without possibility of release pending removal proceedings.
DISCUSSION
The INS is detaining petitioner under 8 U.S.C. § 1226(c)(1), which requires that the Attorney General "take into custody any alien who [has been convicted of certain crimes] 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." 8 U.S.C. § 1226(c)(1) (emphasis added).
Petitioner was released from state custody in January 1999. BICE did not take him into custody until April 2004. Under these particular facts, petitioner is not subject to mandatory detention because he was not taken into custody "when [he was] released." See Pastor-Camarena v. Smith, 977 F. Supp. 1415, 1418 (W.D. Wash. 1997) (construing temporary rules in effect before § 1226(c), which also used the phrase "when the alien is released"); Alikhani v. Fasano, 70 F. Supp.2d 1124, 1130 (S.D. Cal. 1999) (accord); Velasquez v. Reno, 37 F. Supp. 663, 672 (D.N.J. 1999) (accord). Cf. Alwaday v. Beebe, 43 F. Supp.2d 1130, 1133 (D. Or. 1999) (§ 1226(c) did not apply retroactively) ("Had Congress intended that § 236(c) apply retroactively to aliens released from incarceration on criminal convictions before the statute's effective date, Congress could have required custody `regardless of when the alien is released' or "at any time after the alien is released.'").
CONCLUSION
The petition for writ of habeas corpus (#1) is granted. Respondents are ordered to release petitioner on the previously set conditions.