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Mudhalaa v. Bureau of Immigration and Customs Enforcement

United States District Court, Eastern District of Michigan, Southern Division

April 29, 2015

MOHAMMED AL MUDHALLAA, Petitioner,
v.
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, Respondent.

MEMORANDUM AND ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS (DOC. 2)[1]

AVERN COHN UNITED STATES DISTRICT JUDGE

I. Introduction

This is a habeas case involving immigration law. On March 16, 2015, Mohammed Al Mudhallaa (Petitioner) filed this action against the Bureau of Immigration and Customs Enforcement (the government or ICE) seeking a writ of habeas corpus under 28 U.S.C. § 2241. Petitioner is a citizen of Yemen and a lawful permanent resident (LPR) of the United States.

Petitioner requests relief in the form of directing the government to hold an individualized bond hearing under 8 U.S.C. § 1226(a). For the reasons that follow, the petition will be granted.

II. Background

On March 2, 2015, Petitioner was apparently stopped by United States Customs when he attempted to enter the United States from Canada at the Windsor Tunnel. He was taken into custody and later charged as removable based on a 2011 state court conviction in Tennessee for possession of a handgun while under the influence. Petitioner was released from state custody based on that conviction over four years and two months ago.

After his detention, Petitioner sought release on bond under 8 U.S.C. § 1226(a)(2), which permits an alien to be released on bond if the immigration judge determines an alien is entitled to bond. The immigration judge denied Petitioner’s request, finding that Petitioner is subject to mandatory detention under § 1226(c) and therefore not entitled to a bond hearing.

The petition challenges his continued detention pending removal without a bond hearing and seeks relief in the form of a hearing. The government was directed to file a prompt response, which it did.

Since the filing of the petition and response, Petitioner’s removal proceedings have progressed. On April 21, 2015, an immigration judge ordered Petitioner removed to Yemen. Petitioner has preserved his right to appeal the removal decision and removal is apparently not imminent.[2]

III. Discussion

A. The Statutes and BIA’s Interpretation

There are several provisions in the Immigration and Nationality Act that pertain to the government’s authority to detain individuals who are currently in removal proceedings. Relevant to this case are § 1226(a), concerning nonmandatory detention and § 1226(c), which requires mandatory detention and no bond hearing.

With regard to nonmandatory detention, i.e. bond eligibility, the statute provides:

(a) Arrest, detention, and release. On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in ...

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