()

A federal judge has ordered authorities to provide a prompt bond hearing for a Colombia national who was “plucked out of the community” five years after a misdemeanor conviction and has been incarcerated for nearly six months while awaiting action on an immigration case.

Southern District Judge Alvin Hellerstein (See Profile) said Jorge Araujo-Cortes’ continued confinement “offends the Constitution” and violates a statute providing for the mandatory detention of some potentially deportable convicts. He granted Araujo-Cortes’ habeas corpus petition in a 27-page opinion dated Aug. 5.

Records show that Araujo-Cortes is a lawful resident of the United States who was brought to this country in 1985, when he was one year old.

In 2009, Araujo-Cortes was convicted of fourth-degree criminal possession of a weapon, a misdemeanor, and successfully completed his three-year probationary sentence.

In January, nearly five years after the conviction, Araujo-Cortes was arrested by Immigration and Customs Enforcement (ICE) officials, targeted for removal and placed in a New Jersey detention center.

ICE determined Araujo-Cortes was subject to mandatory detention under 8 U.S.C. §1226(c), and therefore ineligible for bond. Araujo-Cortes, represented by Brooklyn Defender Services, argued that he is not subject to mandatory detention under §1226(c), and also challenged his incarceration on constitutional grounds.

On the statutory issue, courts have disagreed on the application of §1226, which directs the government to take into custody “an alien who is deportable by reason of having committed [any enumerated offense] when the alien is released … for the same offense.”

Most courts have concluded that §1226 does not apply if, as in this case, the noncitizen was not taken into immigration custody “when … released.”

Others, particularly in the Third and Fourth Circuits, have not held the government to such a strict reading of that clause and permitted the detention of noncitizens who were not promptly taken into immigration custody following their release on a criminal charge.

Hellerstein joined the majority of courts that have considered the issue.

“The mandatory detention statutory scheme does not apply to individuals who were not placed in detention ‘when … released’ but were instead reintegrated into their community after their conviction,” Hellerstein wrote in Araujo-Cortes v. Shanahan, 14 Civ. 4231. “Because Araujo-Cortes was not placed in immigration detention or at around the time when he was released, he is not subject to mandatory detention.”

On the constitutional issue, Hellerstein said there is no justification for holding Araujo-Cortes for six months without due process after he was “plucked out of the community where he had lived for almost five years following his conviction.”

Hellerstein said courts tolerate roughly six months incarceration without a hearing, and Araujo-Cortes is at that limit.

“Six months detention without an opportunity to be heard raises serious constitutional questions,” Hellerstein wrote. “Araujo-Cortes’ continuing detention has become unreasonable.”

The judge gave authorities one week to provide Araujo-Cortes with a bond hearing, where it will need to show that he is either a risk of flight or dangerous in order to continue the detention.

Bridget Phillips Kessler, an attorney with Brooklyn Defender Services who represented Araujo-Cortes on the habeas petition, said it is far more difficult for an individual to prepare his or her case when incarcerated.

“It’s a wonderful decision for our client, and we are glad he will have an opportunity to have a judge determine his risk of flight and dangerousness so he can hopefully obtain a reasonable bond and rejoin his family while he fights his immigration case,” Kessler said.

Ruben Loyo of Brooklyn Defender Services is Araujo-Cortes’ immigration counsel and also worked on the habeas petition.

The government was represented by Southern District Assistant U.S. Attorney Christopher Kendrick Connolly. There was no immediate reaction from the government.