Hosh v. Lucero, No. 11-1763

Decided: May 25, 2012

The Fourth Circuit reversed the district court’s decision to grant a bond hearing to a deportable criminal alien who was not immediately taken into custody after being released from state prison.  Hosh is a citizen of Somalia who entered the United States as a derivative asylee and has been a lawful permanent resident since 2007.  In 2008, he was convicted of unlawful wounding and grand larceny in Fairfax County, Virginia.  He received two-year concurrent sentences for each offense, but both sentences were suspended and he was placed on probation for two years.  United States Immigration Customs and Enforcement (“ICE”) arrested Hosh at his home in 2011 and placed him in federal custody.  He was charged with removability for having committed an aggravated felony after entry in this country.  Hosh requested a bond hearing, but the immigration judge found that Hosh was subject to mandatory detention under 8 U.S.C. § 1226(c) and denied his request for a hearing.  The relevant statute provides requires federal detention without the possibility of bond of certain deportable aliens “when” those aliens are released from other custody.  Hosh filed a petition for writ of habeus corpus in the Eastern District of Virginia and argued he was not subject to mandatory detention under 8 U.S.C. § 1226(c) because ICE had not taken him into custody immediately upon his release from state custody.  The district court granted his request for a bond hearing and remanded to the immigration court with instructions to hold a bond hearing within 10 days.

Acknowledging that the statute can be read two ways, the court relied on traditional statutory interpretation tools and concluded that the Board of Immigration Appeals decision to deny a bond hearing was a permissible reading of the statute.  The court reasoned that exempting deportable criminal aliens from mandatory detention because of an administrative glitch was not a plausible reading of the statute.  Finally, the court declined to apply the rule of lenity which stands for the proposition that ambiguities in a statute should be construed in favor of the noncitizen.  Therefore, Hosh remains subject to mandatory detention.

Full Opinion

-Jennifer Routh

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