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Szentkiralyi v. Ahrendt

United States District Court, D. New Jersey

August 14, 2017

KRISZTINA R. SZENTKIRALYI, Petitioner,
v.
STEVEN AHRENDT, et al.,[1] Respondents.

          ORDER

          HON. SUSAN D. WIGENTON, UNITED STATES DISTRICT JUDGE.

         Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Krisztina R. Szentkiralyi, filed pursuant to 28 U.S.C. § 2241. (ECF No. 1). Following an order to answer (ECF No. 9), the Government filed a response to the Petition (ECF No. 13), to which Petitioner has replied (ECF Nos. 14-15). For the following reasons, this Court will grant the petition and direct an immigration judge to provide Petitioner with a bond hearing within ten days.

         I. BACKGROUND

         Petitioner, Krisztina Szentkiralyi, is a native of citizen of Hungary who entered this country in May 2011 pursuant to the Visa Waiver Program (“VWP”), with permission to remain through August 16, 2011. (Document 1 attached to ECF No. 13 at 2). Petitioner, however, remained in this country beyond that date, and in October 2012 was convicted of Fifth Degree possession of stolen property in the Criminal Court of the City of New York. (Id.). Although Petitioner received a conditional discharge in that matter, she was thereafter also convicted of First Degree identity theft in the Supreme Court of New York, Queens County, on July 21, 2014, for which she received a one year prison sentence. (Id.). Following that sentence, Petitioner received several more convictions - including a petit larceny charge for which she was sentenced to time served in August 2014, a Third Degree grand larceny charge in New York for which she received a six month sentence, and a January 2016 disorderly conduct charge which resulted in a conditional discharge. (Id. at 2-3). In addition to her criminal record in New York, Petitioner has been subject to an INTERPOL red notice from Hungary since June 2015 which was issued by Hungarian officials who possess an outstanding arrest warrant for Petitioner charging her with fraud. (Id. at 3).

         On June 10, 2016, immigration officials took Petitioner into custody and placed her into expedited removal proceedings pursuant to 8 U.S.C. § 1187. (Id. at 2). Petitioner has remained in immigration detention since that time. (Id. at 2-4). During her detention Petitioner has sought, and been denied, release on parole on several occasions, and has also had a bond hearing during which an immigration judge determined that she lacked jurisdiction to grant bond pursuant to the Board of Immigration Appeals' (“BIA's”) decision in Matter of A.W., 25 I&N Dec. 45 (BIA 2009) as Petitioner was subject to the VWP. (Id. at 3). Although Petitioner was issued a removal order via the VWP in June 2016, she has sought relief from that removal order in the immigration courts since June 20, 2016. (Id. at 3). On April 21, 2017, an immigration judge denied Petitioner's requests for relief, and both the Government and Petitioner reserved the right to appeal. (Id. at 4). On or about May 15, 2017, Petitioner filed an appeal of the immigration judge's decision denying her relief from removal with the BIA, which apparently remains pending at this time. (Document 3 attached to ECF No. 14).

         II. DISCUSSION

         A. Legal Standard

         Under 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).

         B. Analysis

         1. The statutory basis of Petitioner's detention

         Petitioner argues in her habeas petition that her ongoing detention without a bond hearing violates Due Process. In order to address this claim, this Court must first address the statutory basis for Petitioner's detention. While Petitioner asserts that she is detained pursuant to 8 U.S.C. § 1226(c) because she is deportable by way of having committed an enumerated offense, the Government contends that she is instead subject to detention pursuant to 8 U.S.C. § 1187 because she entered this country pursuant to the Visa Waiver Program. In making that argument, the Government relies upon the BIA's interpretation of the VWP statute announced in Matter of A.W.

         By way of background, the VWP is a special program which permits aliens from certain specified countries to enter the United States for a period of up to ninety days without first obtaining a visa. See Shehu v. Att'y Gen., 482 F.3d 652, 654 (3d Cir. 2007). While the VWP makes a brief visit to this country more expedient, that expediency comes at a cost - VWP entrants voluntarily waive their right to challenge the basis for their removal and are permitted to challenge their removal only by way of an application for asylum, withholding of removal, or relief under the Convention Against Torture. Id.; see also 8 U.S.C. § 1187(b). As a result, a final order denying those three forms of relief is considered a final removal order for VWP entrants, and they may be removed without further process once such an administratively final order is issued. See Sutaj v. Rodriguez, No. 16-5092, 2017 WL 66386, at *2 (D.N.J. Jan. 5, 2017). These special restrictions apply to all who enter the United States through the VWP, even those who do so fraudulently. Id.

         While 8 U.S.C. § 1226 and its various subsections provides the basis for the detention of most aliens during the pendency of their removal proceedings prior to the issuance of a final order of removal, the BIA determined in A.W. that VWP aliens are not subject to detention under § 1226, but are instead detained pursuant to 8 U.S.C. § 1187(c)(2)(E). 25 I. & N. Dec. at 47-48. The BIA based this decision on the fact that the authority to grant bond vested in immigration judges is limited, that such authority arises only in the context of areas where that authority has been explicitly delegated to them by the Attorney General, and that the authority to conduct bond hearings which had been delegated arose only in standard removal proceedings following a notice to appear where the alien's detention is controlled by the subsections of 8 U.S.C. § 1226. Id. Without detailed explanation, the BIA distinguished VWP aliens by stating that “the statutory authority for [a VWP alien's] detention is contained in . . . 8 [U.S.C. §] 1187(c)(2)(E) . . . not . . . 8 U.S.C. § 1226.” Id. at 47. The BIA explained this determination merely by noting that the authority to grant bond to aliens “detained” pursuant to § 1187 no longer belonged to the Attorney General, and thus had not been delegated to the immigration judges who derived their authority from a delegation from the Attorney General. Id. at 48.

         The lynchpin of the BIA's determination in A.W. is the BIA's determination that § 1187(c)(2)(E) provides statutory authority for the detention of VWP aliens independent of the general authority to detain aliens pending removal pursuant to § 1226. Section 1187(c)(2)(E), which is titled “repatriation of aliens, ” however, ...


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