United States District Court, D. New Jersey
JOSE L. LINARES, UINTED STATES DISTRICT JUDGE.
before the Court is the petition for a writ of habeas corpus
of Petitioner, Clive Rose, filed pursuant to 28 U.S.C. §
2241. (ECF No. 1). Following an order to answer (ECF No. 2),
the Government filed a response to the Petition. (ECF No. 6).
Petitioner chose not to file a reply. For the following
reasons, this Court will deny the petition without prejudice.
Clive Rose, is a native and citizen of the United Kingdom who
originally Dated this country in 1975. (Document 1 attached
to ECF No. 6 at 11). Petitioner thereafter became a legal
permanent resident of the United States. (Id.).
Throughout his time in this country, Petitioner has amassed a
significant criminal history, which in relevant part includes
March 2006 convictions for possession of cocaine in violation
of N.J. Stat. Ann. § 2C:35-5(a)(1), and possession of
cocaine with the intent to distribute in violation of N.J.
Stat. Ann. §§ 2C:35-5(a)(1) and 2C:35-5(b)(2).
(Id. at 11-57). On March 11, 2016, following his
release from state custody, Petitioner was taken into
immigration custody and placed into removal proceedings based
on his criminal history. (Id. at 10-11). Petitioner
has remained in immigration custody since that date.
(Id.; Document 3 attached to ECF No. 6 at 2-6).
was first scheduled to appear before the immigration courts
on April 6, 2016, but that hearing was continued because of
operational and security issues in the courts. (Document 3
attached to ECF No. 6 at 3). Petitioner was thereafter
returned to the immigration court for a hearing on April 25,
2016, but requested a continuance so that he could acquire an
immigration attorney to represent him. (Id.).
Petitioner appeared before an immigration judge again on June
8 and July 13, 2016, but each hearing was continued again so
that Petitioner could seek representation. (Id. at
3-4). Petitioner was scheduled for another hearing in August
2016, but that hearing was postponed because Petitioner was
apparently not brought to the court by immigration officials
for some unknown reason. (Id. at 4). Petitioner was,
however, brought back to the immigration courts in both
September and October 2016, but on each date again requested
and was granted a continuance so he could continue to seek
representation. (Id.). Petitioner was thereafter
scheduled to return to the immigration courts on November 29,
2016. (Id.). Neither party has provided this Court
with any information regarding what has occurred since
November 29, 2016, however. Because no actual hearing had
taken place as of November 2016, it is not clear what, if
any, claims for relief from removal Petitioner may have from
the record provided by the parties. (Id.).
A. Legal Standard
28 U.S.C. § 2241(c), habeas relief may be extended to a
prisoner only when he "is in custody in violation of the
Constitution or laws or treaties of the United States."
28 U.S.C. § 2241(c)(3). A federal court has jurisdiction
over such a petition if the petitioner is "in
custody" and the custody is allegedly "in violation
of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2241(c)(3); Maleng v.
Cook, 490 U.S. 488, 490 (1989). As Petitioner is
currently detained within this Court's jurisdiction, by a
custodian within the Court's jurisdiction, and asserts
that his continued detention violates due process, this Court
has jurisdiction over his claims. Spencer v. Lemna,
523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit
Court, 410 U.S. 484, 494-95, 500 (1973); see also
Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
it is clear from the record that Petitioner is being held
based on his past criminal record and is not yet subject to a
final order of removal, he is currently detained pursuant to
8 U.S.C. § 1226(c). The propriety of Petitioner's
continued detention is therefore controlled by the Third
Circuit's decisions in under Diop v. ICE/Homeland
Sec, 656 F.3d 221, 231-35 (3d Cir. 2011), and
Chavez-Alvarez v. Warden York County Prison, 783
F.3d 469 (3d Cir. 2015). In Diop, the Third Circuit
held that § 1226(c) "authorizes detention for a
reasonable amount of time, after which the authorities must
make an individualized inquiry into whether detention is
still necessary to fulfill the statute's purposes."
656 F.3d at 231. The determination of whether a given period
of detention is reasonable under the circumstances is a fact
specific inquiry "requiring an assessment of all of the
circumstances of a given case." Id. at 234.
Under Diop, the reasonableness of a given period of
detention is thus "a function of whether it is necessary
to fulfill the purpose of the statute." Id.
the inquiry into the reasonableness of mandatory detention is
fact specific, the Diop court did not provide a
specific length of time beyond which a petitioner's
detention would become unreasonable based solely on the
passage of time. See 656 F.3d at 234; see also
Carter v. Aviles, No. 13-3607, 2014 WL 348257, at *3
(D.N.J. Jan. 30, 2014). While the Third Circuit has refused
to adopt a bright line rule for determining the
reasonableness of continued detention under § 1226(c),
the Court of appeals did provide guidance on that question in
Chavez-Alvarez. In Chavez-Alvarez, the
Third Circuit held that, at least where the Government has
not shown bad faith on the part of the petitioner,
"beginning sometime after the six-month timeframe
[upheld by the Supreme Court in Demore [v. Kim, 538
U.S. 510, 532-33 (2003), ] and certainly by the time [the
petitioner] had been detained for one year, the burdens to
[the petitioner's] liberties outweighed any justification
for using presumptions to detain him without bond to further
the goals of the statute." 783 F.3d at 478.
case, the Government argues that, while Petitioner has at
this point been held for just under eleven months without a
bond hearing, the facts of this matter are clearly
distinguishable from those in Chavez-Alvarez and
that Petitioner is therefore not entitled to relief through
his current habeas petition. In making that argument, the
Government specifically argues that Petitioner has been
responsible for the vast majority of the delays in his
immigration case, in each instance asking for more time to
acquire a lawyer, and that because Petitioner has yet to
acquire counsel after apparently trying to do so for months
on end, Petitioner has yet to provide any basis for relief
from removal and has thus not yet provided a good faith basis
for disputing his removal before the immigration courts.
Court has explained:
The question before this Court, then, is whether
Petitioner's continued detention is distinguishable from
the situation in Chavez-Alvarez. In that case, the
Third Circuit specifically held that the reasonableness of a
given period of detention does not rely solely on how the
Government has conducted itself, and observed that the
"primary point of reference for justifying [an]
alien's confinement must be whether the civil detention
is necessary to achieve the statute's goals: ensuring
participation in the removal process and protecting the
community from the danger [the alien] poses." 783 F.3d
at 475. Thus, detention can become unreasonable ...