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Hugo A. A. Q. v. Green

United States District Court, D. New Jersey

August 21, 2018

HUGO A. A. Q., Petitioner,
v.
CHARLES GREEN, [1] Respondent.

          OPINION

          HON. JOHN MICHAEL VAZQUEZ, JUDGE.

         I. INTRODUCTION

         Petitioner has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his prolonged immigration detention. (ECF No. 1.) For the reasons stated herein, the petition is denied without prejudice.

         II. BACKGROUND

         Petitioner is a native and citizen of El Salvador who entered the United States without inspection in or around 2010. (See, e.g., ECF No. 7 at PageID: 38.) Petitioner was taken into custody by the United States Department of Homeland Security (“DHS”) on March 5, 2016. (See, e.g., id.) Petitioner has been detained at the Essex County Correctional Facility in Newark since that time. (See, e.g., ECF No. 1 at PageID: 2.) Upon being taken into custody, DHS served Petitioner with notices informing, among other things, that he was being detained pursuant to 8 U.S.C. § 1226(a), and that he could request a custody redetermination hearing, i.e., a bond hearing, in which DHS's custody determination would be reviewed by an immigration judge (“IJ”). (See ECF No. 7-1 at PageID: 75-76, 78-81.)

         Petitioner requested a redetermination of DHS's custody decision on March 5, 2016. (Id. at PageID: 78, 81.) Immigration Judge (“IJ”) Mirlande Tadal held a custody hearing on May 18, 2016, at which time she found that Petitioner represented a “danger to [the] community” and that his continued detention was appropriate. (Id. at PageID: 83.) Petitioner reserved his right to appeal the IJ's custody decision. (Id.) It appears that Petitioner never pursued any such appeal (see Id. at PageID: 86), and that the foregoing hearing continues to represent Petitioner's only effort to challenge DHS's custody determination in the immigration court.

         On May 18, 2016, Petitioner conceded before the immigration court that he was removable as “[a]n alien present in the United States without being admitted or paroled.” (See ECF No. 7-1 at PageID: 98 (citing Section 212(a)(6)(A)(i) of the Immigration and Nationality Act).) On July 19, 2016, Petitioner expressed a fear of return to El Salvador and sought withholding of removal to that country. (Id.) On January 18, 2017, IJ Theresa Holmes-Simmons issued a written decision denying Petitioner's withholding application. (Id. at PageID: 98-109.) On April 25, 2017, the Board of Immigration Appeals (“BIA”) affirmed the IJ's denial. (Id. at PageID: 112-14.)

         On May 17, 2017, Petitioner filed a petition for review (“PFR”) in the Third Circuit (at Court of Appeals Docket No. 17-2122) challenging the BIA's April 25, 2017 removal decision; Petitioner contemporaneously requested a stay of his removal from the United States during the pendency of his PFR. (Id. at PageID: 116-19.) The Third Circuit has stayed Petitioner's removal during the pendency of Petitioner's PFR. (Id. at PageID: 157-58.) Petitioner's PFR remains pending before the Third Circuit.

         1. Petitioner's Prior Section 2241 Petition in the District of New Jersey

         Petitioner previously challenged his continuing immigration detention in this District via an earlier § 2241 habeas petition which Petitioner filed on September 16, 2016. (See Civil No. 2:16-cv-5718 (JMV), at ECF No. 1.) The undersigned denied that petition on April 26, 2017, based on the following considerations: (i) “Petitioner had a custody hearing [on May 18, 2016], and he was denied bond based on a finding that he was a danger to the community[;]” (ii) “this Court lacks jurisdiction to review the IJ's custody determination[;]” and (iii) Petitioner “has an avenue to seek release[] if his circumstances have changed materially since his prior bond redetermination hearing” because he “can obtain a bond redetermination hearing before an IJ, and the IJ's decision is appealable to the BIA.” See [Hugo A. A. Q.] v. Green, 2017 WL 1535092, at *2-3 (D.N.J. Apr. 26, 2017). Ultimately, the Court dismissed Petitioner's earlier-filed § 2241 habeas petition after concluding that “Petitioner's discretionary detention under § 1226(a), beginning March 3, 2016, for which he received a bond redetermination hearing before an IJ, does not violate his right to due process.” Id. at *3.

         2. Petitioner's Current § 2241 Action

         Petitioner filed the present petition for a writ of habeas corpus on August 4, 2017 (the “§ 2241 Petition”). (ECF No. 1.) The allegations set forth in Petitioner's current § 2241 Petition confirm that Petitioner is again challenging the IJ's May 18, 2016 custody determination and that Petitioner's March 5, 2016 request for a bond hearing continues to represent Petitioner's lone effort to challenge his continued detention in the immigration court. (See, generally, id.; see also Pet'r's Nov. 29, 2017 Reply, ECF No. 8 at PageID: 163-67.) Petitioner's current § 2241 Petition focuses on the fact that Petitioner has been detained at Essex County Correctional Facility since March 5, 2016; Petitioner avers that his continued immigration detention is unconstitutional in light of the overlong nature of his detention. (See, generally, ECF Nos. 1 and 8.) Petitioner requests that this Court order his release from immigration custody, or, in the alternative, that this Court order another bond hearing. (See ECF No. 1 at PageID: 23-24.)

         Respondent (the “Government”) filed an answer to the claims raised in Petitioner's § 2241 Petition on October 26, 2017. (ECF No. 7.) The Government argues that the current § 2241 Petition should be denied because Petitioner has failed to exhaust available administrative remedies because he never appealed to the BIA challenging the IJ's May 18, 2016 custody decision and/or requested a bond redetermination hearing in the immigration court. (Id. at PageID: 48-51.) The Government further claims that because Petitioner - as an individual detained under § 1226(a)[2] - has already received a bond hearing, there is no additional relief available to him from this Court in this habeas proceeding. (Id. at PageID: 47-48, 51-57.)

         III. ...


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