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Nairne v. Rodriguez

United States District Court, D. New Jersey

October 11, 2017

MARVIN NAIRNE, Petitioner,
v.
ORLANDO RODRIGUEZ, Respondent.

          ORDER

          Susan D. Wigenton, United States District Judge

         Presently 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 Petitioner.

         I. BACKGROUND

         Petitioner, 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. (Id.).

         Petitioner 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.[1] (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.

         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 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).

         B. Analysis

         In his 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.

         In this 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 explained,

[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 ...

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