United States District Court, D. New Jersey
D. WIGENTON, UNITED STATES DISTRICT JUDGE
before the Court is the pro se petition for a writ
of habeas corpus of Petitioner, Charles A., filed pursuant to
28 U.S.C. § 2241. (ECF No. 1). Following an to answer,
the Government filed a response to the Petition (ECF No. 6),
to which Petitioner has replied. (ECF No. 7). The Government
has also filed a letter updating the Court as to
Petitioner's status. (ECF No. 8). For the following
reasons, this Court will deny Petitioner's habeas
petition without prejudice.
is a native and citizen of the Dominican Republic who entered
the United States in July 1989 and has remained in the
country since that time as a lawful permanent resident. (ECF
No. 1 at 5). During his time in this country, Petitioner has
received convictions for multiple drug related offenses
including convictions for possession of a controlled
substance with intent to distribute in both 2002 and 2004.
(Id. at 6). Based on this criminal history,
immigration officials took Petitioner into custody on or
about June 5, 2017, and have held him pursuant to 8 U.S.C.
§ 1226(c) since that date. (Id.).
first appeared before the immigration courts on June 15,
2017. (Document 1 attached to ECF No. 6 at 1). On June 15,
2017, Petitioner requested and was granted an extension of
time so that he could prepare his case. (Id. at
1-2). On July 19, 2017, Petitioner again requested an
extension, and his hearing was continued to August 17, 2017.
(Id. at 2). Petitioner thereafter requested another
continuance, and his hearing was rescheduled for September
20, 2017. (Id.). On September 20, 2017, however,
Petitioner filed a motion to substitute counsel, which was
granted. (Id.). Petitioner apparently also both
requested more time to prepare and filed a motion to
terminate removal proceedings at that time. (Id.).
The assigned immigration judge denied the motion to terminate
in October 25, 2017, but thereafter granted Petitioner's
request for more time and scheduled Petitioner's next
hearing for December 7, 2017. (Id.). Petitioner
thereafter requested and received another continuance through
January 3, 2018. (Id.).
January 3, 2018, Petitioner appeared for a hearing before an
immigration judge and was ordered removed. (Id. at
2-3). Petitioner apparently filed no further requests for
relief from removal. (Id.). On January 23, 2018,
Petitioner filed an appeal to the Board of Immigration
Appeals (“BIA”). (Id.). On May 23, 2018,
the BIA dismissed Petitioner's appeal and affirmed his
order of removal. (ECF No. 8). Petitioner then filed a
petition for review with the Third Circuit Court of Appeals
accompanied by a motion for a stay of removal.
(Id.). On June 18, 2018, the Clerk of the Third
Circuit entered an order granting Petitioner a temporary stay
of removal pursuant to a standing order of the Court of
Appeals to remain in effect until such time as a motions
panel decided Petitioner's motion for a stay on the
merits. (Third Circuit Docket No. 18-2345 at Document No.
3112959248). Briefing on Petitioner's stay motion was
apparently completed on July 3, 2018, but the Third Circuit
has yet to rule on the motion or vacate the temporary stay.
(See Third Circuit Docket No. 18-2345 Docket Sheet).
Petitioner is thus currently subject to a temporary stay of
removal pursuant to the Third Circuit's standing order.
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).
petition, Petitioner contends that his ongoing detention
pursuant to 8 U.S.C. § 1226(c) violates his right to Due
Process as he has been held overlong without a bond hearing.
Petitioner challenges his continued detention under §
1226(c) pending the conclusion of his removal proceedings.
This Court recently summarized the legal basis for a
challenge to detention under § 1226(c) in Dryden v.
Green, No. 18-2686, 2018 WL 3062909 (D.N.J. June 21,
2018). As this Court explained in that matter,
[t]he Supreme Court first considered the propriety of
prolonged detention pursuant to § 1226(c) in Demore
v. Kim, 538 U.S. 510 (2003). Upon a review of the
statute, the authority of Congress to detain aliens pending
removal, and the usual time frame associated with detention
under the statute, the Court determined in Demore
that the statute was facially constitutional as
“[d]etention during removal proceedings is a
constitutionally permissible part of that process.”
Id. at 531. In reaching this conclusion, the Court
noted that in most cases detention under the statute lasted
only a month and a half and that even in cases where an
appeal was taken to the Board of Immigration Appeals,
detention pursuant to § 1226(c) lasted an average of
four months, indicating that detention under the statute was
often brief and had a defined beginning and end point in the
form of the conclusion of removal proceedings. Id.
at 529. Ultimately, as the Court found the statute
constitutional, the Demore Court rejected
Petitioner's challenge even though Petitioner had spent
slightly longer than average in detention - a period of
approximately six months. Id. at 530. Thus, after
Demore it was clear that immigration detention under
§ 1226(c) was facially valid, and that detention for
less than six months would not be sufficient to support an as
applied challenge to detention under the statute.
In Diop v. ICE/Homeland Sec., 656 F.3d 221, 231-35
(3d Cir. 2011), however, the Third Circuit concluded that
detention under § 1226(c) would become constitutionally
suspect if it continued for a prolonged period of time well
beyond the six months discussed in Demore. In that
case, the Third Circuit explained that while mandatory
detention without an individualized hearing for a brief
period, such as that discussed in Demore, was
constitutionally sound, excessively prolonged detention would
be unreasonable and “when detention becomes
unreasonable, the Due Process Clause demands a hearing, at
which the Government bears the burden of proving that
continued detention is necessary to fulfill the purposes of
the detention statute.” Id. at 233. Turning to
the statute itself, the Third Circuit found that, in cases
involving prolonged detention lasting several years,
mandatory detention could become unreasonable and thus
unconstitutional if that detention continued absent a
hearing. The Court of Appeals, however, did “not
believe that Congress intended to authorize prolonged,
unreasonable detention without a bond hearing, ” and
thus determined that § 1226(c) must be read to
“contain an implicit limitation of reasonableness:
the statute authorizes only mandatory detention that is
reasonable in length [and the statute] yields to the
constitutional requirement that there be a further,
individualized, inquiry into whether continued detention is
necessary to carry out the statute's purpose” when
this “implicit limitation” is exceeded.
Id. at 235.
The Third Circuit thus avoided its constitutional concerns
with prolonged detention under § 1226(c) by reading this
limitation into the statutory text. Id. Based on
this implicit limitation, the Diop panel 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