United States District Court, D. New Jersey
SUSAN D. WIGENTON UNITED STATES DISTRICT JUDGE
before the Court is the petition for a writ of habeas corpus
of Petitioner Telmo Perez Calderon 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. 3).
Petitioner failed to file a reply. For the following reasons,
this Court will deny the petition without prejudice.
Telmo Perez Calderon, is a native and citizen of Ecuador who
entered the United States illegally sometime prior to May
2016. (See Document 1 attached to ECF No. 3).
According to Petitioner's habeas petition, this illegal
entry occurred sometime in 1995. (ECF No. 1 at 5). Following
two domestic violence convictions in 2016, Petitioner came to
the attention of immigration officials, who issued him a
notice to appear for removal proceedings in February 2017.
(Document 1 attached to ECF No. 3). The Government thereafter
served that notice upon Petitioner, who at the time was being
held at a county jail, and took him into immigration custody
on March 22, 2017. (Id.). Petitioner was thereafter
held pursuant to 8 U.S.C. § 1226(a) under the
Government's discretionary authority to detain aliens
pending removal proceedings, and has remained in detention
since February 2017. (Document 2 attached to ECF No. 3 at 2).
While so detained, however, Petitioner received a bond
hearing from an immigration judge, and was denied release on
bond on October 17, 2017. (Document 3 attached to ECF no. 3).
Although Petitioner initially reserved his right to appeal
that determination, it does not appear that he ever actually
appealed the bond decision to the Board of Immigration
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).
habeas petition, Petitioner asserts that his continued
detention pending the conclusion of removal proceedings
violates Due Process. In order to evaluate that claim, the
Court must first determine the statutory basis of
Petitioner's detention. While Petitioner argued at length
in his initial petition that he was being held pursuant to 8
U.S.C. § 1226(c), which governs the custody of aliens
convicted of certain classes of crimes, that statute does not
apply to Petitioner as he is not subject to mandatory
detention based on his criminal history, but instead because
he entered the country illegally without admission or parole
and has been placed in removal proceedings. (Document 1
attached to ECF No. 3). Because Petitioner is being held
pending removal proceedings based on his illegal entry, and
not because he is subject to mandatory detention under §
1226(c), he is subject to detention pursuant to the
Government's discretionary detention authority under 8
U.S.C. § 1226(a). See, e.g., Contant v. Holder,
352 Fed.Appx. 692, 694-96 (3d Cir. 2009).
Court recently explained,
Aliens held pursuant to 8 U.S.C. § 1226(a) are entitled
to bond hearings at which they can secure their release if
they can “demonstrate [that] they would not pose a
danger to property or persons and . . . are likely to appear
for any future proceedings.” Contant, 352
Fed.Appx. at 695; 8 C.F.R. § 236.1(c)(8). At such a
hearing, the burden rests on the alien himself, who must show
that he does not pose a danger and is likely to appear
“to the satisfaction of the” immigration judge
holding the hearing. 8 C.F.R. § 236.1(c)(8); see
also Matter of Fatahi, 26 I&N Dec. 791, 793-95 &
n. 3 (BIA 2016). Congress specifically provided immigration
officials with the discretion to grant or withhold release on
bond, and “[n]o court may set aside any action or
decision by [immigration officials] under this section
regarding the detention or release of any alien or the grant,
revocation, or denial of bond or parole.” 8 U.S.C.
§ 1226(e). District Courts sitting in habeas review
therefore have no jurisdiction to review the decision of an
immigration judge denying bond. See, e.g., Pena v.
Davies, No. 15-7291, 2016 WL 74410, at *2 (D.N.J.
January 5, 2016). Thus, where a § 1226(a) [detainee] was
provided with a bona fide bond hearing, this Court may not
grant him a new bond hearing or order his release, and the
petitioner seeking review of the bond decision must instead
either appeal the denial of bond to the Board of Immigration
Appeals or seek his release through filing a request with
immigration officials for a bond redetermination.
Id.; see also Contant, 352 Fed.Appx. at
695. The only situation in which a discretionary detainee who
has received a bond hearing may be entitled to habeas relief
arises where the petitioner can show that his bond hearing
was conducted unlawfully or without Due Process, in which
case this Court may have the authority to order a new bond
hearing. See, e.g, Garcia v. Green, No. 16-0565,
2016 WL 1718102, at *3-4 (D.N.J. Apr. 29, 2016).
. . . This Court is aware of no caselaw in this circuit which
suggests that an alien who has already received a bond
hearing under 8 U.S.C. § 1226(a) is entitled to release
or a new bond hearing absent a showing that he was denied Due
Process at his bond hearing or that his bond hearing was
otherwise unlawfully conducted. 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). Indeed, in its
recent decision in Jennings v. Rodriguez, 538 U.S.
___, 138 S.Ct. 830 (2018), the Supreme Court explicitly
rejected decisions of the Ninth Circuit providing that an
alien, after his first bond hearing under § 1226(a),
should receive new hearings every six months where the burden
would shift to the Government to prove that Petitioner's
detention remained necessary. 138 S.Ct. at 847-48. As the
Court noted, “[n]othing in § 1226(a)'s text .
. . even remotely supports the imposition of either of those
requirements.” Id. at 847. Thus, it is clear
that, absent a showing that his bond hearing was conducted in
the absence of Due Process or was otherwise unlawfully
conducted, an alien held pursuant to § 1226(a) who has
previously received a bona fide bond hearing is not entitled
to habeas relief. Id. at 847-48.
Colon-Pena v. Rodriguez, No. 17-10460, 2018 WL
1327110, at *2 (D.N.J. Mar. 15, 2018).
records in this matter show, Petitioner received a bond
hearing in October 2017 and was denied bond. To the extent
Petitioner wishes for this Court to reconsider the decision
of the immigration judge denying him bond, this Court is
without jurisdiction to do so. 8 U.S.C. § 1226(e). To
the extent Petitioner has argued that his detention has
become “overlong” and that he is therefore
entitled to another bond hearing merely based on the passage
of time, that argument is foreclosed by Jennings as
“[n]othing in § 1226(a)'s text . . . even
remotely supports” such a proposition. 138 S.Ct. at
847. Petitioner thus could only be entitled to habeas relief
if he could show that he was somehow denied Due Process
during the bond hearing he received. See Garcia,
2016 WL 1718102 at *3. As ...