Appeal from the United States District Court for the Southern District of Illinois. Nos. 3:08-cv-278 and 08-cv-291-J. Phil Gilbert, Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge.
ARGUED SEPTEMBER 12, 2008
Before RIPPLE, ROVNER, and EVANS, Circuit Judges.
This case presents us with the question of whether a person held by the United States Immigration and Customs Enforcement ("ICE"- formerly the Immigration and Naturalization Service (INS)) who is placed in a facility run by the Bureau of Prisons ("BOP"), is in the custody of the BOP for purposes of the Adam Walsh Child Protection and Safety Act of 2006 (the "Act"), 18 U.S.C. § 4248 et seq., or whether he is in the custody of the ICE and therefore does not fall within that Act. Under the Act, if he is in the custody of the BOP and is certified to be a sexually dangerous person, his release from custody is stayed and he is subject to civil commitment.
Pablo Santiago Hernandez-Arenado ("Hernandez") arrived in the United States in 1980 as part of the Mariel Boatlift. As part of that exodus, the Attorney General granted him immigration parole pursuant to 8 U.S.C. § 1182(d)(5). Approximately four years later, HernandezArenado pled guilty to the sexual assault of a child less than 13 years of age. That conviction involved the sexual assault of a seven-year-old boy, and HernandezArenado admitted to involvement in "several hundred" pedophilic contacts in the United States and Cuba. Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1243 (10th Cir. 2008). He was sentenced by the New Jersey state court to 5 years' imprisonment. The INS thereafter revoked his parole, and upon his release from state prison, detained him pending deportation pursuant to 8 U.S.C. § 1231(a)(6). Section 1231(a)(6) provides for the detention of an alien who is "inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal." For that detention, the INS placed Hernandez-Arenado in a facility run by the Bureau of Prisons.
The deportation was impeded, however, by the unwillingness of Cuba or any other nation to accept him. Thus, the INS was presented with the quandary of holding Mariel detainees who could not be admitted into the United States, but could not be deported. What ensued was a detention of indefinite duration. Hernandez-Arenado remained in the Bureau of Prisons facility for more than 20 years.
Eventually, the circumstance of such Mariel detainees reached the Supreme Court in Clark v. Martinez, 543 U.S. 371 (2005). In Martinez, the Court ruled that aliens detained under 8 U.S.C. § 1231(a)(6) may only be held for a reasonable time in order to effect removal. Id. at 377-78.
Shortly thereafter, Hernandez-Arenado filed a petition for a writ of habeas corpus seeking his release on the grounds that his deportation was not likely in the reasonably foreseeable future. Because Hernandez-Arenado was housed in a BOP facility in Leavenworth, Kansas at the time, that petition was filed in the District of Kansas. That court granted the petition and ordered his release within 14 days. In the meantime, Hernandez-Arenado had been moved to a prison in Marion, Illinois which was also run by the BOP. After the district court granted the habeas petition, but before the release date, the acting chairperson of the BOP's Certification Review Panel certified that Hernandez-Arenado is a sexually dangerous person under 18 U.S.C. § 4247(a)(5) and thus subject to civil commitment under 18 U.S.C. § 4248 of the Adam Walsh Act. The government then filed a petition to civilly commit Hernandez-Arenado as a sexually dangerous person, which Hernandez-Arenado opposed. The district court in a thorough and well-reasoned order held that Hernandez-Arenado was in the custody of the ICE for purposes of the Adam Walsh Act and that the ICE's decision to house him in BOP facilities did not render him in the custody of the BOP under that Act. The government now appeals that decision.
Before we address his appeal, however, we note that during the pendency of this appeal, the Tenth Circuit decided an appeal from the District of Kansas' grant of habeas relief. Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2008). The Tenth Circuit reversed that decision, and denied the grant of habeas corpus, based on the Attorney General's revised interpretation of the detention provision at 8 U.S.C. § 1231(a)(6). Under that revised interpretation, only a limited class of aliens may be detained for an extended period exceeding the ninety days, including those who pose a special danger to the public because they have committed crimes of violence and due to mental illness are likely to do so in the future, and for whom no conditions of release can be reasonably expected to ensure the safety of the public.
8 C.F.R. § 241.14. Under the new regulations, enhanced evidentiary and procedural protections also were imposed to protect the alien. 547 F.3d at 1253; 8 C.F.R. § 241.14. The Tenth Circuit concluded that the continued detention under that provision was not impermissible when so limited. 547 F.3d at 1256. We raise this only to note that the Tenth Circuit's decision does not render this appeal moot. Hernandez-Arenado's continued detention is pursuant to a provision that allows the continued detention of a person deemed to pose a special danger to the public. Id. at 1243. That determination is potentially subject to review every 6 months. Id. at 1254. Because a court could determine at any time that release is appropriate, the applicability of the Adam Walsh Act to him is not moot because it provides an independent basis for his continued detention and could prevent that immediate release.
The relevant language in the Adam Walsh Act provides:
(a) Institution of proceedings.-In relation to 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, the Attorney General or any individual authorized by the Attorney General or the Director of the Bureau of Prisons may certify that the person is a sexually dangerous person, and transmit the certificate to the clerk of the court for the district in which the person is confined. . . . The court shall order a hearing to determine whether the person is a sexually dangerous person. A certificate filed under this subsection shall stay the release of the person pending completion of procedures contained in this section.
18 U.S.C. § 4248(a) (emphasis added). The question here is whether Hernandez-Arenado was "in the custody" of the BOP for purposes of the Act.
We first must place the phrase in its context. In addition to including persons in the custody of the BOP, the Act applies to those committed to the Attorney General's custody for determination of competency to stand trial in federal court (18 U.S.C. § 4241(d)), and those against whom all federal criminal charges have been dismissed for reasons relating to their mental condition. It therefore is limited to two categories of persons who are in the federal criminal process and thus under the authority of the Attorney General as head of the Department of Justice. The third category, those in the custody of the BOP, is consistent with those other categories if read as including those remanded to the custody of the BOP after a federal conviction. The government, however, urges that Hernandez-Arenado should be ...