OPINION & ORDER Robenson Guy Joseph is a citizen of Haiti and a. lawful permanent resident of the United States. He was arrested and detained on September 20, 2017, when the Department of Homeland Security (“DHS”) charged him as removable for having committed an “aggravated felony.” See 8 U.S.C. §1227(a)(2)(A)(iii). For over fourteen months since then, Joseph has been in civil detention. Meanwhile, a Supreme Court decision precluded the primary — if not the only — reasoned legal basis that DHS had presented for seeking Joseph’s removal, and an immigration judge granted Joseph’s request to terminate his removal proceedings. DHS is presently appealing the immigration judge’s decision to the Board of Immigration Appeals (“BIA”). This case is about whether, and the conditions under which, DHS may continue to detain Joseph during the pendency of that appeal.For the reasons explained below, this Court concludes that Joseph is constitutionally entitled to receive a supplemental bail hearing at which DHS must prove, by clear and convincing evidence, that his detention continues to be necessary despite the immigration judge’s decision in his favor. The Court therefore grants in part Joseph’s Second Amended and Supplemental Petition for Writ of Habeas Corpus (the “Second Amended Petition”) and orders Respondents to take Joseph before an immigration judge within seven days for an individualized bond hearing in accordance with this Opinion and Order, or otherwise release him.BACKGROUNDI. Underlying Criminal ConvictionJoseph was born in Haiti and lived there until he was admitted to the United States as a lawful permanent resident at the age of 19. He left under traumatizing circumstances; as a teenager, Joseph had been targeted, beaten, and nearly killed in retaliation for his family’s political activities in Haiti. See Second Am. Pet. 26 (Dkt. 35). Joseph arrived legally in the United States in 1995 and built his adult life here. He has four U.S. citizen children and, before his detention, lived near and cared for his mother, who is also a lawful permanent resident. See Second Am. Pet.
1,28.After living in the United States for nearly 20 years, he was convicted by guilty plea in New York county court for attempted assault in the second degree under New York Penal Law §§110 and 120.05. See Second Am. Pet. 29. On June 2, 2015, Joseph was sentenced to time served and five years of probation for that offense. The county court, in its Uniform Sentence and Commitment from that day, noted that the date of the offense was December 13, 2014, and it stated in two places that the relevant “Law/Section & Subdivision” of conviction was “110/120.05-02″. See Dkt. 21-3. Less than one year later, Joseph violated the conditions of his probation. See Second Am. Pet. 29. In March 2016, the county court resentenced him to one year in prison for his December 13, 2014 offense. See Dkt. 24-4. This time, the Uniform Sentence and Commitment identified §110.00 and §120.05-01, rather than §120.05-02, as the relevant statutes. See id.1II. Immigration Proceedings and Legal BackgroundOn September 20, 2017, DHS and United States Immigration and Customs Enforcement (“ICE”) commenced removal proceedings against Joseph by serving him with a Notice to Appear, charging him as removable under 8 U.S.C. §1227(a)(2)(A)(iii) for having committed an “aggravated felony.” See NTA at 3 (Dkt. 21-6). As relevant here, an aggravated felony includes any attempt to commit a “crime of violence” as defined by 18 U.S.C. §16 for which the term of imprisonment is at least one year. See 8 U.S.C. §1101(a)(43)(F), (U). 18 U.S.C. §16, in turn, divides the definition of “crime of violence” into two parts. See Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018). Under §16(a), also called the “elements clause,” see id., a crime of violence includes “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another[.]” See 18 U.S.C. §16(a). Under §16(b) — the so-called “ residual clause,” which was recently declared unconstitutional, see Dimaya, 138 S. Ct. at 1223 — a crime of violence further includes “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” See 18 U.S.C. §16(b). Joseph’s Notice to Appear did not specify whether he was being charged as removable under §16(a) or (b), either or both of which might have been the basis for his charge at the time.On the day Joseph was served with the Notice to Appear, he was arrested and placed in civil immigration detention in county jail pending the completion of his removal proceedings. See Second Am, Pet.
