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Osbeli L. v. Green

United States District Court, D. New Jersey

July 25, 2018

OSBELI L., Petitioner,
v.
CHARLES GREEN, Respondent.

          OPINION

          ESTHER SALAS, U.S.D.J.

         Petitioner 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.

         I. BACKGROUND

         Petitioner 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.).

         On 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. (Id.).

         On 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.

         On 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.

         In the 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.

         II. DISCUSSION A. Legal Standard

         Under 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 (1989).

         The 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).

         B. Analysis

         Federal law sets forth the authority of the Attorney General to detain aliens in removal proceedings.

         Title 8 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, ...


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