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Pennsylvania: USDC Grants Habeas Bond Hearing for Alien

On May 24, 2012 the United States District Court for the Middle District of Pennsylvania granted in part the habeas petition of Robert A. Bautista seeking release from Department of Homeland Security custody, which was not granted, and a bond hearing, which was.

Bautista, a 38-year-old Dominican Republic native, became a lawful permanent resident of the United States in 1984 at the age of ten. He experienced no difficulty leaving and re-entering the United States prior to 2009, but on his second trip out of the country that year he was detained in re-entry at JFK airport, New York. He was eventually allowed to enter the country, but he was told to make contact with the Philadelphia Customs and Border Patrol Office on March 25, 2012. He was at that time entered into mandatory immigration detention, where he has remained since.

Bautista appeared at York County Immigration Court in April 2010, moved to terminate his detention and was denied, then entered a plea. Immigration Court found he was inadmissible by reason of 2003 conviction of an aggravated felony, a tenuous arson case in which he was found by his own car with a gas can in his hand. Bautista is currently challenging the arson conviction.

Bautista appealed the immigration court’s decision, which the appeals court dismissed after argument in October 2011. In that determination, the judge noted Bautista had not exhausted remedies prior to that step in that he neglected to apply for parole. Bautista applied for parole and was denied January 2012 by letter, giving rise to the instant Emergency petition for writ of habeas corpus. As of the date of this petition, March 2012, Bautista had been in DHS custody for over 24 months.

In analysis, the district court pointed out that both sides were arguing an inapplicable point of law, 8 USC §1231. The October 2011 dismissal of his appeal left Bautista as an alien “seeking admission” per judge’s opinion and order. Circumstances – lawful permanent resident seeking re-admission after being convicted of a crime involving moral turpitude – fell within the purview of §1225(b)(2)(A). For the purposes of analyzing indefinite detention, as respondents claimed was the case in Bautista, the court found no effective difference between §1225(b)(2)(A) and §1226(c)(1)(A), which covers any inadmissible alien, with respect to custody. The court referenced Supreme Court opinion noting the similarity between the two statutes except that, if anything, the rationale for a bond hearing is even stronger for §1225.

The court brushed aside Respondents’ assertion that Bautista was a threat to society, given Bautista’s proven work ethic and his wife and three children are his priority and ordered a bond hearing. See: Bautista v. Sabol, 862 F.Supp.2d 375 (M.D. Pa. 2012).

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Related legal case

Bautista v. Sabol