United States District Court, D. New Jersey
KRISZTINA R. SZENTKIRALYI, Petitioner,
STEVEN AHRENDT, et al., Respondents.
SUSAN D. WIGENTON, UNITED STATES DISTRICT JUDGE.
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.
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).
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).
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 statutory basis of Petitioner's detention
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.
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.
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.
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,