The Adam Walsh Child Protection And Safety Act of 2006 Does Not Apply To Persons In The Physical, But Not Legal, Custody Of The Bureau Of Prisons
UNITED STATES v. HERNANDEZ-ARENADO (July 6, 2009)
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Pablo Hernandez-Arenado (Hernandez) was awarded immigration parole when he came to the United States from Cuba as part of the Mariel Boatlift. Four years later, Hernandez pled guilty to the sexual assault of a young boy and was sentenced to five years in state prison. He admitted to several hundred similar episodes. The Immigration and Naturalization Service (“INS”) revoked his parole and placed him in a Bureau of Prisons (“BOP”) facility after his release from state prison, pending deportation. Hernandez filed a petition for a writ of habeas corpus after 20 years in custody, after the Supreme Court ruled that the statute under which Hernandez was being held only allowed a reasonable period of custody pending removal. The petition was granted and his release was ordered. Before Hernandez was released, the government sought to civilly commit him as a sexually dangerous person pursuant to the Adam Walsh Act. The district court denied the petition, holding that the Adam Walsh Act applied only to individuals "in the custody of" the BOP and that Hernandez was in fact in the custody of Immigration and Customs Enforcement (“ICE”), the successor agency to INS. The government appeals.
In their opinion, Judges Ripple, Rovner and Evans affirmed. The Court stated that the Supreme Court has recognized different meanings for the word "custody" in different contexts. Here, for example, the BOP has physical custody of Hernandez but the ICE has legal custody. The Court went on to say that the Bureau of Persons has physical custody of many persons for whom it does not have legal custody and, in fact, has legal custody of many persons over whom it does not have physical custody. The Court did not believe that the applicability of the Act should turn on a factor, like physical custody, that is random and manipulable. Even the government refused to suggest a standard test for determining custody, and does not believe that every person in its physical custody is subject to the Act. The Court insisted on giving the term a meaning that applied beyond the narrow facts of the case. It rejected a physical custody trigger and instead adopted the interpretation that the Act applied to all federal offenders, whether they were in the physical custody of the Bureau of Prisons or not, but not to persons in the physical control of the BOP simply as a service to another agency.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select