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Watson v. Green

United States District Court, D. New Jersey

April 26, 2017

DENTON WATSON, Petitioner,
v.
CHARLES GREEN, Respondent.

          OPINION

          KEVIN MCNULTY United States District Judge

         I. INTRODUCTION

         The petitioner, Denton Watson, is an immigration detainee currently lodged at the Essex County Correctional Facility in Newark, New Jersey. He is proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.[1] Mr. Watson challenges his current immigration detention in this habeas petition. For the following reasons, the habeas petition will be granted and a bond hearing will be ordered to take place before an Immigration Judge ("IJ") within fourteen days.

         II. BACKGROUND

         Mr. Watson is a native and citizen of Jamaica. He entered the United States in 1983. Mr. Watson was convicted of several drug offenses, the first of which occurred in 1989.

         On July 8, 2016, Mr. Watson was placed into immigration detention. On August 3, 2016, Mr. Watson requested a continuance of his removal proceedings before an IJ so that he could obtain counsel. At another hearing before an IJ on September 7, 2016, Mr. Watson, who now had counsel to represent him, requested another continuance. On October 26, 2016, the master calendar hearing was adjourned by the IJ to the individual calendar for a merits hearing. On January 10, 2017, Mr. Watson appeared for his individual merits hearing. On February 27, 2017, an IJ ordered Mr. Watson removed from the United States.

         Mr. Watson appealed the IJ's removal order to the Board of Immigration Appeals ("BIA"). Mr. Watson indicates in his reply brief that the matter remains pending before the BIA. (See Dkt. No. 8 at p.6)

         In January, 2017, Mr. Watson filed his habeas petition. Respondent filed a response in opposition to the habeas petition. Thereafter, Mr. Watson filed a reply brief in support of his habeas petition.

         III. DISCUSSION

         Mr. Watson has appealed the IJ's order to the BIA, and for so long as that appeal remains pending, his order of removal is not final. See 8 C.F.R. 1241.1(a) (order of removal by IJ becomes final upon dismissal of appeal by the BIA). The Attorney General has the authority to detain aliens in removal proceedings before the issuance of a final order of removal. This period of detention is known as the "pre-removal" period. Detention of an alien in the pre-removal period is governed by Section 1226 of Title 8 of the United States Code. Section 1226(a) permits the Attorney General to detain or release an alien pending a decision on whether the alien is to be removed from the United States:

On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General-
(1) may continue to detain the arrested alien; and
(2) may release the alien on-
(A) bond of at least $1, 500 with security approved by, and containing conditions prescribed ...

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