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Juan v. Green

United States District Court, D. New Jersey

July 6, 2017

URENA JUAN, Petitioner,
v.
CHARLES GREEN, Respondent.

          MEMORANDUM AND ORDER

          KEVIN MCNULTY United States District Judge.

         The petitioner, Juan Urena, [1] is an immigration detainee currently lodged at the Essex County Correctional Facility in Newark, New Jersey. A native and citizen of the Dominican Republic, he entered the United States in 2002. In 2013, Mr. Urena was convicted of robbery -bodily injury of force. He was placed in immigration detention on August 24, 2016, and he remains there.

         On April 4, 2017, an Immigration Judge ordered Mr. Urena removed from the United States. Mr. Urena appealed that decision to the Board of Immigration Appeals ("BIA"). That appeal remains pending before the BIA.

         In May, 2017, Mr. Urena filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in this Court. He requests that a bond hearing take place. On July 5, 2017, the government filed its response to the habeas petition. (See Dkt. No. 4) In its response, the government states that it does not object to this Court's ordering that a bond hearing take place before an Immigration Judge.

         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. As Mr. Urena's appeal remains pending before the Board of Immigration Appeals, his order of removal is not final. See 8 C.F.R. § 1241.1(a) (order of removal by Immigration Judge becomes final upon dismissal of appeal by the BIA). 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 by, the Attorney General;
(B) conditional parole;...

8 U.S.C. § 1226(a). "Except as provided in subsection (c)" is included because, under Section 1226(c), certain criminal aliens are subject to mandatory pre-removal detention:

The Attorney General shall take into custody any alien who-
(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(a)(ii), (A)(iii), (B), (C), ...

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