United States District Court, D. New Jersey
JOSE L. LINARES, UNITED STATES DISTRICT JUDGE.
before the Court is the petition for a writ of habeas corpus
of Petitioner, Karol Marcin Jakowski, filed pursuant to 28
U.S.C. § 2241. (ECF No. 1). Following an order to answer
(ECF No. 3), the Government filed a response to the Petition
(ECF No. 5), to which Petitioner has replied. (ECF No. 8).
For the following reasons, this Court will grant the petition
and will grant Petitioner a bond hearing before an
Karol Marcin Jakowski, is a native and citizen of Poland who
Dated this country in June 2005 and ultimately became a
lawful permanent resident of the United States in June 2006.
(Document 1 attached to ECF No. 5 at 4). In October 2013,
however, Petitioner was convicted of manufacturing,
distributing, dispensing, or possession with intent to
distribute cocaine, for which he received a four year prison
sentence. (Id.). Based on this conviction,
Petitioner was taken into immigration custody and placed in
removal proceedings on May 4, 2016. (Id. at 2-3).
Since that time, Petitioner has remained in immigration
detention without a bond hearing pursuant to 8 U.S.C. §
1226(c). (Id. at 14).
first appeared before the immigration courts on or about May
18, 2016, but requested a continuance to obtain counsel.
(Id. at 11). Petitioner was scheduled to appear
again on June 28, but that hearing was continued at the
request of Petitioner's immigration counsel.
(Id.). The next hearing was then scheduled for July
13, but that date was also continued to provide Petitioner
with time to file an application for relief from removal,
although the immigration judge apparently
"sustained" the charge of removability on July 13,
2016. (Id.). Although Petitioner was set to appear
once again on August 10, 2016, that date was also continued
at Petitioner's counsel's request. (Id.). At
his next appearance on September 14, 2016, Petitioner filed
an application for relief from removal and protection from
removal. (Id. at 12). The immigration judge on that
date once again "sustained" the charge of
removability, and Petitioner was scheduled for a merits
hearing on November 22, 2016. (Id.). At the November
22 hearing, Petitioner's immigration counsel requested
and was permitted to withdraw his representation of
Petitioner, and the merits hearing was rescheduled for
February 9, 2017. (Id.). After the February hearing
was rescheduled due to weather issues, Petitioner's
merits hearing was set for March 21, 2017. (Id.). It
is not clear what, if anything, occurred during the March 21
hearing as neither Petitioner nor the Government have
provided that information, but it appears from the record
that Petitioner remains detained and has not yet received a
final order of removal.
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. Kemna,
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).
the record indicates that Petitioner is being held based on
his past criminal convictions 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.
this reasonableness inquiry is fact specific, Court of
Appeals declined to provide a specific length of time beyond
which a petitioner's detention would presumptively become
unreasonable in Diop. 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) in
the cases following Diop, the Court of Appeals did
provide some 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
case, the Government contends that, while Petitioner has at
this point been held for approximately a year without a bond
hearing, the facts of this matter are clearly distinguishable
from those in Chavez-Alvarez and Petitioner is
therefore not entitled to relief. In making that argument,
the Government specifically argues that Petitioner has been
responsible for the vast majority of the delays in his
immigration proceedings, and that Petitioner has only one
potentially meritorious avenue for relief - a claim under the
Convention Against Torture - which requires clearing a high
evidentiary threshold. Petitioner counters this argument by
suggesting that the need for the many continuances arises out
of the need to muster evidence to support his Convention
claim, arguing that the high bar the Government argues that
he faces supports the conclusion that more time was needed to
prepare a bona fide claim under the Convention.
Court has explained:
The question before this Court... 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 ...