United States District Court, D. New Jersey
D. Wigenton, United States District Judge
before the Court is die petition for a writ of habeas corpus
of Petitioner, Marvin Naime, filed pursuant to 28 U.S.C.
§ 2241. (ECF No. 1). Following an order to answer, die
Government filed a response to the Petition (ECF No. 4), to
which Petitioner has replied. (ECF No. 5). For die following
reasons, this Court will grant the petition and will direct
an Immigration Judge to conduct a bond hearing for
Marvin Nairne, is a native and citizen of Jamaica who entered
this country in September 2012 and became a lawful permanent
resident on December 12, 2014. (Document 1 attached to ECF
No. 4 at 2). On July 8, 2016, however, Petitioner was
convicted of distribution of a controlled dangerous substance
within 1000 feet of a school in violation of N.J. Stat. Ann.
§ 2C:35-7. (Id.). On October 12, 2016,
Petitioner was taken into immigration custody pursuant to 8
U.S.C. § 1226(c) as he was determined to be removable
based on his prior drug offense conviction. (Id.).
Petitioner was thereafter placed into removal proceedings
based on his prior conviction on October 20, 2016.
first appeared before the Immigration Judge hearing his
removal case on November 7, 2016. (Id.). At that
hearing, Petitioner requested and was granted a continuance
so that he could acquire counsel. (Id.). On December
5, 2016, Petitioner again requested and was granted a
continuance so he could continue to seek counsel.
(Id. at 3). Petitioner then appeared, with counsel,
on January 5, 2017. (Id.). At the January 5, 2017,
hearing, Petitioner's counsel requested and was granted
another continuance so that he could prepare for
Petitioner's removal proceedings. (Id.).
Petitioner next appeared with counsel on February 16, 2017.
(Id.). At that hearing, Petitioner's counsel
conceded that Petitioner was removable, but filed documents
seeking relief from removal under the Convention Against
Torture (CAT) on Petitioner's behalf. (Id.).
Petitioner then sought a continuance so that he could proceed
with a post-conviction relief (PCR) petition in the state
courts challenging his drug conviction, which was denied.
(Id.). Petitioner thereafter appeared once again on
April 18, 2017, at which point he asked the Immigration Judge
to reconsider his motion for a continuance based on his PCR
petition. (Id.). The Immigration Judge granted that
request, and scheduled Petitioner's next hearing for June
13, 2017. On June 13, 2017, Petitioner, through counsel,
again requested a continuance as his PCR petition remained
pending. (Id.) The Immigration Judge granted that
continuance and scheduled another hearing for July 19, 2017,
and then rescheduled that hearing sua sponte to July
31, 2017. (Id. at 3-4). It is unclear what, if
anything, happened at the July hearing.
28 U.S.C. § 2241(c), habeas relief may be extended to a
prisoner only when he "is in custody in violation of die
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).
habeas petition, Petitioner challenges his continued
immigration detention under 8 U.S.C. § 1226(c). Because
Petitioner is being held pursuant to § 1226(c), the
propriety of his ongoing detention without an individualized
bond hearing is governed by the Third Circuit's decisions
in Diop v. ICE/Homel and 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 is a fact specific
inquiry "requiring an assessment of all of the
circumstances of a given case" Id. at 234.
Reasonableness in this context is "a function of whether
[continued detention without bond] is necessary to fulfill
the purpose of the statute, " specifically protecting
the public and ensuring that the petitioner attends his
removal proceedings. Id. While the Diop
court declined to adopt a bright line rule for determining
reasonableness based solely on the passage of time,
see 656 F.3d at 234; see also Carter v.
Aviles, No. 13-3607, 2014 WL 348257, at *3 (D.NJ. Jan.
30, 2014), the Third Circuit did provide guidance on that
point in Chavez-Alvarez. Specifically, the Third
Circuit in Chavez-Alvarez held that, at least where
the Government fails to show 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 [will outweigh]
any justification for using presumptions to detain him
without bond to further the goals of the statute." 783
F.3d at 478.
matter, the Government argues that Petitioner's continued
detention without a bond hearing is reasonable because
Petitioner's case is distinguishable from
Chavez-Alvarez in two respects: first, Petitioner is
responsible for the vast majority of the delays in his
immigration proceedings and has thus lengthened his own
detention, and second because Petitioner has only one
available avenue of relief, his CAT claim, which the
Government believes is unlikely to succeed. As this Court has
[t]urning first to the issue of Petitioner's
responsibility for some of the delay in his case, the Third
Circuit specifically held in Chavez-Alvarez 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, and a petitioner can be entitled to a bond
hearing, even where the Government itself acted reasonably
and is not responsible for the delays in the conclusion of an
alien's immigration proceedings. Id.
While the Third Circuit did observe that "certain cases
might be distinguishable [from Chavez-Alvarez where
the alien is] merely gaming the system to delay their
removal, " and that the aliens in such cases
"should not be rewarded a bond hearing they would not
otherwise get under the statute, " Id. at 476,
the Chavez-Alvarez panel also observed that courts
need not "decide whether an alien's delay tactics
should preclude a bond hearing" where the court could
not conclude that the alien acted in bad faith. Id.
Determining whether an alien has acted in bad faith is not a
matter of "counting wins and losses, " but is
instead a fact specific inquiry requiring consideration of
whether the alien has presented "real issues" to
the immigration court by raising factual disputes,
challenging poor legal reasoning, raising contested legal
theories, or presenting new legal issues. Id.
"Where questions are legitimately raised, the wisdom of
[the Third Circuit's] ruling in Leslie [v. Att'y
Gen. of the United States,678 F.3d 265, 271 (3d Cir.
2012), ] is plainly relevant [and the court] cannot
'effectively punish' these aliens for choosing to
exercise their legal right to challenge the Government's
case against them by rendering 'the corresponding
increase in time of detention... reasonable.'"
Id. Thus, the conduct of the parties in a vacuum