August 27, 2013
COURTNEY STEPHENS, Petitioner,
OSCAR AVILES et al., Respondents.
FAITH S. HOCHBERG, District Judge.
This matter comes before the Court upon Petitioner's application ("Petition") for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. (Pet., ECF. No. 1.) Petitioner, an alien detainee, is a native and citizen of Jamaica. (Pet. at 3.) Petitioner asserts that, on September 14, 2012, Petitioner was taken into the custody of immigration authorities. (See id.) Petitioner also asserts that Petitioner was ordered removed by an immigration judge on May 9, 2013, and is now in the process of appealing that order to the Board of Immigration Appeals. (See id.) As of now, Petitioner has been in custody for approximately ten months in connection with both Petitioner's removal proceedings and appeal.
Pre-removal detention is governed by 8 U.S.C. § 1226 and case law thereunder. Section 1226 permits, and in the case of aggravated felonies mandates, detention during the immigration proceedings. See, e.g., Demore v. Kim , 538 U.S. 510, 523 (2003) ("detention during deportation proceedings [is] a constitutionally valid aspect of the deportation process").
However, the Due Process Clause of the United States Constitution impliedly dictates that a detention may become so prolonged that the detainee is entitled to a hearing at which the government must prove that continued detention is justified. See Diop v. ICE/Homeland Sec. , 656 F.3d 221, 233 (3d Cir. 2011); see also Demore , 538 U.S. at 532-33 (Kennedy, J., concurring). But Diop explicitly declined to adopt a rule that a hearing would presumptively be required after a certain number of months of pre-removal detention. Rather, the reasonableness of pre-removal detention depends on the facts of the individual case. That reasonableness determination hinges on the length of the delay and the reasons for the delay, including "a given individual detainee's need for more or less time, as well as the exigencies of a particular case." Id. at 234. Therefore, a court will consider, for example, the extent to which delays were attributable to the detainee's requests for adjournments or, alternatively, to the immigration judge's errors or the government's sluggishness in obtaining evidence. See id.
Although there is no rigid time restriction, a range of acceptable delay can be divined from case law. In Demore, supra, the United States Supreme Court upheld a pre-removal detention, without a bond hearing, of about six months. Diop, on the other hand, found that a pre-removal detention of thirty-five months without a bond hearing was too long. Similarly, Prieto-Romero v. Clark , 534 F.3d 1053 (9th Cir. 2008), cited with approval in the Third Circuit, upheld a thirty-six month pre-removal detention. See Contant v. Holder , 352 F.Appx. 692 (3d Cir. 2009) (relying upon Prieto-Romero to uphold, as reasonable, a nineteen-month pre-removal delay caused primarily by pending removal proceedings and the alien's requests for adjournments). And, in Bulatov v. Hendricks, this Court upheld a thirty-month detention. See Civ. No. 11-845, 2012 U.S. Dist. LEXIS 143671, at *19 (D.N.J. Oct. 4, 2012).
Here, Petitioner has been held in confinement for approximately ten months. Fewer than eight of these months were consumed by Petitioner's removal proceedings, and only a few weeks can be attributed to the appellate proceedings that were only recently initiated. Nothing in the Petition suggests undue procrastination by the government or errors by the immigration judge that led to delays. (See, generally, Pet.) In light of the foregoing, the length of Petitioner's pre-removal detention does not offend the due process protections outlined in Demore and Diop. Correspondingly, habeas relief is unwarranted at this juncture. Accord Bete, Civ. No. 11-6405, 2012 U.S. Dist. LEXIS 43438; Maynard, Civ. No. 11-605, 2011 U.S. Dist. LEXIS 142435.
For the foregoing reasons, the Petition will be dismissed without prejudice to Petitioner filing a new and separate petition should Petitioner's continued detention become unreasonably prolonged.
Petitioner's application for appointment of counsel (ECF No. 2) will be denied as moot.
An appropriate Order follows.