The opinion of the court was delivered by: J. Phil Gilbert U.S. District Judge
The resolution of this case turns on whether respondent Pablo Santiago Hernandez-Arenado ("Hernandez") is "in the custody of the Bureau of Prisons" for the purposes of the civil commitment procedures established by § 302(4) of the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"), Pub. L. No. 109-248, § 302(4), 120 Stat. 587, 620 (2006) (codified at 18 U.S.C. § 4248). The Court concludes that he is not.
Hernandez is a Cuban citizen who arrived in the United States in 1980 by way of the Mariel Boatlift, after which the Attorney General granted him immigration parole under 8 U.S.C. § 1182(d)(5). In 1984, Hernandez pled guilty to a charge of sexual assault on a child less than 13 years of age in violation of New Jersey state law and was sentenced to serve five years in a New Jersey prison. The Immigration and Naturalization Service ("INS") subsequently revoked his immigration parole, and when he finished serving his New Jersey criminal sentence in 1987, the INS detained him based on his immigration parole revocation and placed him in a facility run by the federal Bureau of Prisons ("BOP") pending deportation. See 8 U.S.C. §1231(a)(6).
However, Mariel Cubans like Hernandez pose a problem to standard deportation protocol because neither Cuba nor any other nation has agreed to accept them. This leaves them in a sort of no-man's land where they are inadmissible to the United States but cannot be deported to another country. As a result, a number of Mariel Cubans continue to be detained in federal prisons with no realistic end to their detention in sight. While housed in BOP facilities, Mariel Cuban detainees are subject to the day-to-day control of BOP officials, although INS (now its successor the Bureau of Immigration and Customs Enforcement ("BICE")*fn1 ) reviews the BOP management of the detainees at least annually.
In 2005, the Supreme Court decided that Mariel Cubans could not be held indefinitely pending deportations that were not likely to happen in the reasonably foreseeable future. In Clark v. Martinez, 543 U.S. 371 (2005), the Supreme Court considered the cases of Sergio Suarez Martinez and Daniel Benitez. Martinez and Benitez, like Hernandez, came to the United States from Cuba in 1980 as part of the Mariel Boatlift and committed crimes for which they were incarcerated. Both were detained after the expiration of their respective prison terms by the INS pursuant to removal proceedings. The Supreme Court held that when an alien is held in custody pursuant to 8 U.S.C. §1231(a)(6), which provides for the detention of aliens if they are inadmissible to the United States and subject to removal, the alien may only be held for a reasonable time period in order to effect removal. Martinez, 543 U.S. at 378. This reasonable period of time is presumed to be 6 months or less. Id. In so holding, the Supreme Court extended the reach of Zadvydas v. Davis, 533 U.S. 678 (2001), to those aliens who are not presently able to be removed. Id. at 386.
Shortly after the Supreme Court decided Martinez, Hernandez, who was at the time housed at a BOP facility in Leavenworth, Kansas, still solely pursuant to the immigration parole revocation, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 seeking his release from detention because his deportation was not likely in the reasonably foreseeable future. See Hernandez v. Carlson, Case No. 5:05cv03051 RDR. In June 2007, Hernandez was moved to the United States Penitentiary in Marion, Illinois ("USP-Marion"), a BOP facility within this district. Nevertheless, on March 31, 2008, the Honorable Richard D. Rogers of the District of Kansas granted Hernandez's habeas petition and ordered that he be released within 14 days, that is, on or before April 14, 2008, subject to certain conditions of supervision. The respondent in that case appealed the ruling to the United States Court of Appeals for the Tenth Circuit, where the case is still pending.
After Judge Rogers granted the petition but before Hernandez's release date, Ivonne Bazerman, acting chairperson of the BOP's Certification Review Panel, certified that Hernandez is a sexually dangerous person under 18 U.S.C. § 4247(a)(5) subject to civil commitment proceedings under certain provisions of the Adam Walsh Act, 18 U.S.C. § 4248. The government filed a petition to civilly commit Hernandez as a sexually dangerous person and commenced the instant proceedings (Case No. 08-cv-278-JPG, Doc. 1). In a pleading captioned as a petition for a writ of habeas corpus, Hernandez responded to the government's petition, arguing that 18 U.S.C. § 4248 does not apply to him because he is not in BOP custody (Case No. 08-cv-278-JPG, Doc. 4), which the Court construes to contain a motion to dismiss the civil commitment proceedings. At the same time, Hernandez commenced a habeas corpus proceeding raising the same arguments and seeking immediate release (Case No. 08-cv-291-JPG, Doc. 2). The question squarely before the Court now in both proceedings is whether § 4248 applies to Hernandez.
The Adam Walsh Act subjects to civil commitment certification and confinement proceedings three categories of people: a person who is in the custody of the Bureau of Prisons, or who has been committed to the custody of the Attorney General pursuant to section 4241(d), or against whom all criminal charges have been dismissed solely for reasons relating to the mental condition of the person. . . .
18 U.S.C. § 4248(a). Hernandez is clearly not a person "who has been committed to the custody of the Attorney General pursuant to section 4241(d)," which applies to a defendant in a federal criminal proceeding prior to his sentencing or during his term of probation or supervised release, see 18 U.S.C. § 4241(a), who has been found to be "presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." 18 U.S.C. § 4241(d). Nor is he a person "against whom all criminal charges have been dismissed solely for reasons relating to the mental condition of the person." Consequently, to the extent § 4248's civil commitment proceedings apply to Hernandez, they must do so because he is "a person who is in the custody of the Bureau of Prisons."
What does it mean to be "in the custody of the Bureau of Prisons"? When the Court is called on to interpret statutory language like that in § 4248(a), "the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue judicial inquiry into the statute's meaning, in all but the most extraordinary circumstance, is finished." Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992) (citing Demarest v. Manspeaker, 498 U.S. 184, 190 (1991)); accord United States ex rel. Fowler v. Caremark RX, L.L.C., 496 F.3d 730, 738 (7th Cir. 2007), cert. denied, 128 S.Ct. 1246 (2008). If the "language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case," and "the statutory scheme is coherent and consistent," the inquiry is over. Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). To determine whether a statute is plain or ambiguous, the Court must consider "the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. at 341.
The Court's inquiry into the plain meaning of § 4248(a) is complicated by the elusive nature of the term "custody." Black's Law Dictionary notes in its definition of custody, "The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession." Black's Law Dictionary 460 (rev. 4th ed. 1968). Indeed, the government argues that Hernandez is "in the custody of the Bureau of Prisons" because he is in the physical custody of the BOP and the BOP controls his day-to-day life. On the other side, Hernandez argues that he is not "in the custody of the Bureau of Prisons" because he is in the legal custody of the BICE of the Department of Homeland Security ("DHS"), he is being detained under the DHS's authority and he is simply housed at a BOP facility subject to the oversight of the DHS.
Courts have construed "custody" differently in different contexts. For example, with respect to habeas corpus proceedings under 28 U.S.C. § 2241, which must "name the person who has custody over" the petitioner, 28 U.S.C. § 2242, courts have held that the person with immediate physical custody over the petitioner with the power to produce the petitioner in court is the "person who has custody over" the petitioner for § 2241 purposes, not the person under whose authority the ...