United States District Court, D. New Jersey
Osbeli L. (“Petitioner”) is currently being
detained by the Department of Homeland Security, Immigration
and Customs Enforcement (“DHS/ICE”) at the Essex
County Correctional Facility in Newark, New Jersey. On
February 23, 2018, Petitioner filed the instant Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2241,
challenging his prolonged detention pending removal. (D.E.
No. 1, Petition (“Pet”)). For the reasons stated
below, the Court will deny the Petition.
is a native and citizen of Guatemala who initially entered
the United States without inspection in 2003. (Pet. ¶
12). He was placed in removal proceedings in 2009, by service
of a notice to appear dated August 27, 2009. (Id.).
Respondent appeared before the Court and submitted Form
I-589, Application for Asylum, Withholding of Removal and
protection under the Convention Against Torture.
(Id.). Thereafter, Petitioner was granted Deferred
Action for Childhood Arrivals. (Id.).
April 30, 2014, Petitioner was convicted on two counts of
driving while intoxicated and on July 9, 2014, DHS again took
Petitioner into custody. (D.E. No. 5, Respondent's Answer
(“Answer”) at 3). After paying his bond,
Petitioner was released on July 10, 2014. (Id.). In
October 24, 2016, following a February 26, 2016 conviction
for operating a motor vehicle while under the influence of
alcohol, DHS again took Petitioner into custody.
December 7, 2016, Petitioner received a bond hearing and the
Immigration Judge denied his request, concluding that
Petitioner failed to establish that he was not a danger to
the community or a flight risk. (Id. at 4).
Petitioner did not appeal the denial to the Board of
Immigration Appeals. (Id.). Petitioner received a
second bond hearing on February 15, 2017, and the Immigration
Judge again denied his request. (Id.). Petitioner
appealed this decision to the BIA, which dismissed his
appeal. (Id. at 5). On February 7, 2018, Petitioner
received a third bond hearing, where the Immigration Judge
found that she did not have jurisdiction over his request
because there had been a final administrative order in his
case on December 11, 2017 concerning his applications for
protection and relief from removal. (Id. at 5-6).
The Immigration Judge nevertheless concluded that Petitioner
remained a flight risk and danger to the community.
(Id.). Petitioner did not appeal that order.
February 23, 2018, Petitioner filed the instant habeas
Petition. (D.E. No. 1). He is challenging the Immigration
Judge/DHS's conclusion that he is currently being held
pursuant to § 1231 and therefore not entitled to a bond
hearing. More specifically, he argues that after the
Immigration Judge denied his applications for withholding of
removal and relief pursuant to the Convention Against Torture
on June 29, 2017, he appealed that denial to the BIA. When
the BIA dismissed his appeal on December 11, 2017, he filed a
petition for review with the Third Circuit on December 18,
2017. He also filed a motion for a stay and, pursuant to the
Third Circuit's internal procedure, his removal was
administratively stayed until his motion was decided. On
February 15, 2017, the court granted his motion for a stay.
Because his removal order was stayed by the Third Circuit at
the time of his bond hearing, Petitioner argues that the
Immigration Judge improperly found that he was being held
under § 1231 and she did not have jurisdiction to hold a
bond hearing. Instead, his detention reverted back to §
1226(a) when the Third Circuit stayed his removal order.
Answer, Respondent agrees that Petitioner is held pursuant to
§ 1226(a), but argues that Petitioner is not entitled to
relief because he failed to exhaust administrative remedies
and he has already been provided with the only relief
available to him under § 1226(a) - a bond hearing.
DISCUSSION A. Legal Standard
28 U.S.C. § 2241(c), habeas relief “shall not
extend to a prisoner unless . . . [h]e 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 subject-matter jurisdiction under § 2241(c)(3)
if two requirements are satisfied: (1) the petitioner is
“in custody, ” and (2) the custody is alleged to
be “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
Court has subject matter jurisdiction over this Petition
under § 2241, because Petitioner (1) was detained within
its jurisdiction, by a custodian within its jurisdiction, at
the time he filed his Petition, see Spencer v.
Lemna, 523 U.S. 1, 7 (1998) and Braden v. 30th
Judicial Circuit Court, 410 U.S. 484, 49-95, 500 (1973);
and (2) asserts that his detention is not statutorily
authorized, see Zadvydas v. Davis, 533 U.S. 678, 699
(2001); Chavez-Alvarez v. Warden York Cty. Prison,
783 F.3d 469 (3d Cir. 2015); Diop v. ICE/Homeland
Sec., 656 F.3d 221, 234 (3d Cir. 2011).
law sets forth the authority of the Attorney General to
detain aliens in removal proceedings.
U.S.C. § 1226 governs the pre-removal-order detention of
an alien. Section 1226(a) authorizes the Attorney General to
arrest and to detain or release, an alien, pending a decision
on whether the alien is to be removed from the United States,