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Marroquin v. Green

United States District Court, D. New Jersey

May 10, 2018

ELMAN MARROQUIN, Petitioner,
v.
CHARLES GREEN, Respondent.

          OPINION

          Susan D. Wigenton, United States District Judge

         Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Elman Marroquin, filed pursuant to 28 U.S.C. § 2241 (ECF No. 1). Following an order to answer, the Government filed a response to the petition (ECF No. 4), to which Petitioner replied. (ECF Nos. 5-6). The Government has also submitted a letter updating the Court as to the status of Petitioner's immigration proceedings. (ECF No. 7). For the following reasons, this Court will deny the petition without prejudice.

         I. BACKGROUND

         In denying Petitioner's previous immigration habeas petition, this Court provided the following summary of the background of Petitioner's immigration detention:

Petitioner, Elman Marroquin, is a native and citizen of Guatemala who entered this country illegally in 2003. Following Petitioner's arrest on charges including aggravated assault in New Jersey, immigration officials initiated removal proceedings against Petitioner based upon his illegal entry. On October 27, 2016, Petitioner was released from the Somerset County Jail and taken into immigration custody. Petitioner was also, at that time, issued a notice to appear before the immigration courts which informed Petitioner that he was subject to removal based on his illegal entry, and a second notice informing him that immigration officials had determined that he should be subject to discretionary detention pending the outcome of his removal proceedings. On October 27, 2016, upon being informed that he was subject to discretionary detention pursuant to 8 U.S.C. § 1226(a), Petitioner requested review of his detention by an Immigration Judge in the form of a bond hearing. Petitioner received his first bond hearing in November 2016, but no action was taken on his request at that time by the Immigration Judge. Petitioner filed a request for a bond redetermination in December 2016, resulting in another hearing on December 13, 2016. The Immigration Judge assigned to Petitioner's case again took no action at that time, declining to grant Petitioner bond. Petitioner returned to the immigration court on February 23, 2017, for another bond redetermination hearing. At that time, an Immigration Judge denied Petitioner's bond request, finding Petitioner to be a flight risk and a danger to the community. Petitioner reserved his right to appeal that outcome.
Rather than appeal this first denial of bond, Petitioner filed another bond redetermination request with the immigration courts. On March 28, 2017, a second Immigration Judge denied Petitioner's bond request, again finding him to be a danger to the community and a flight risk. Petitioner then filed an appeal of this second denial to the Board of Immigration Appeals ("BIA"). In advance of Petitioner's appeal, the Immigration Judge issued a written opinion on April 14, 2017, explaining the reasoning for the denial of Petitioner's bond redetermination request. In that opinion, the Immigration Judge explained that Petitioner was a flight risk and danger to the community and was therefore not entitled to bond based on Petitioner's history of domestic incidents, his criminal history which included multiple criminal charges, and his lack of any substantial ties to the community or his U.S. citizen child. On June 13, 2017, the BIA issued its decision on Petitioner's bond redetermination appeal. In its decision, the BIA determined that the Immigration Judge had correctly determined that the Government had "established, by clear and convincing evidence, that [Petitioner] is a danger to the community, " and that Petitioner was therefore not entitled to bond. The BIA thus dismissed Petitioner's appeal.

Marroquin v. Green, No. 17-3008, 2017 WL 4516467, at *1 (D.N.J. Oct. 6, 2017) (record citations omitted).

         Based on this background, Petitioner previously sought relief from this Court, arguing that his detention had become overlong, and that he should therefore receive a new bond hearing. (Docket No. 17-3008 at ECF No. 1). This Court denied that petition as Petitioner was subject to discretionary detention under 8 U.S.C. § 1226(a), and had already received a bond hearing.

         Marroquin, 2017 WL 4516467 at *2. As this Court explained to Petitioner at that time,

While this Court may have the authority to order a bond hearing for a discretionary detainee who can show that he was denied Due Process during his bond hearing, Petitioner makes no such showing in this matter and the Court is aware of no authority permitting a new bond hearing where an alien has failed to make such a showing. See, e.g., Garcia, 2016 WL 1718102 at *3 (court can grant a new bond hearing to § 1226(a) detainee where the original hearing was conducted unlawfully or was not held at all, but cannot overrule denial of release after a bona fide hearing); see also Harris v. Herrey, No. 13-4365, 2013 WL 3884191, at *1 (D.N.J. July 26, 2013) (same); see also Pena v. Davies, No. 15-7291, 2016 WL 74410, at *l-2 (D.N.J. Jan. 5, 2016). Indeed, Petitioner has already received multiple bond redetermination hearings, at which he was denied bond by both the Immigration Judges assigned to his matter and the BIA, and this Court "does not have the power to second guess the discretionary decision of the IJ to deny . . . release on bond." Pena, 2016 WL 74410 at *2; see also 8 U.S.C. § 1226(e) (the "Attorney General's discretionary judgment regarding the [granting or denial of bond] shall not be subject to review. No court may set aside any action or decision [of an immigration judge] regarding the detention or release of any alien, or the grant, revocation, or denial of bond or parole"); Reeves v. Johnson, No. 15-1962, 2015 WL 1383942, at *3 (D.N.J. Mar. 24, 2015); Pisciotta v. Ashcroft, 311 F.Supp.2d 445, 454 (D.N.J. 2004). Because Petitioner has already received the bond hearing he claims to seek, and bond has been denied on multiple occasions, and because this Court lacks the authority to second-guess the decision of the immigration courts with regard to Petitioner's denial of bond, Petitioner is not entitled to habeas relief, and his petition must be denied. Pena, 2016 WL 74410 at *2.

Id.

         Following the dismissal of his prior habeas petition, the immigration judge ordered Petitioner removed and denied his application for cancellation of removal on October 16, 2017. (See Document 4 attached to ECF No. 4 at 3). Petitioner appealed that ruling, but the BIA affirmed and dismissed his appeal on March 6, 2018. (Id. at 3-4). Petitioner, however, sought review from the Third Circuit. (See ECF No. 7). Petitioner also filed with the Third Circuit a motion for a stay of removal. (Id.). On April 5, 2018, the Third Circuit granted that motion, and stayed Petitioner's removal pending the outcome of his petition for review. (Id; see also Document 1 attached to ECF No. 6 at 2). Thus, while Petitioner had previously received a final order of removal, that order is stayed at this time.

         II. DISCUSSION

         A. ...


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