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Thomas C. A. v. Green

United States District Court, D. New Jersey

August 29, 2018

THOMAS C. A., Petitioner,
v.
CHARLES GREEN, Respondent.

          OPINION

          JOHN MICHAEL VAZQUEZ, UNITED STATES DISTRICT 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 granted.

         II. BACKGROUND

         Petitioner is a native and citizen of Trinidad and Tobago. (See, e.g., ECF No. 1 at PageID: 15.) He arrived in the United States on December 12, 1994 as a lawful permanent resident. (Id.) On June 22, 2012, Petitioner was convicted in New Jersey Superior Court of (i) fraudulent use of a credit card, N.J.S.A. § 2C:21-6(h); (ii) theft by deception, N.J.S.A. § 2C:20-4; (iii) wrongfully impersonating, obtaining, and using another's identity, N.J.S.A. § 2C:21-17(a)(4); and (iv) conspiracy to wrongfully impersonate, obtain, and use another's identity, N.J.S.A. § 2C:5-2(a)(1). (Id.) Petitioner was arrested and taken into custody by the United States Department of Homeland Security (“DHS”) on May 24, 2017. (Id.) Petitioner has been detained at the Essex County Correctional Facility in Newark since that time. (See, e.g., Pet'r's May 16, 2018 Reply, ECF No. 8.)

         Upon being taken into custody, DHS served Petitioner with notices informing him, among other things, that he was being detained pursuant to 8 U.S.C. § 1226(c), and that he could request a custody redetermination hearing in which DHS's custody decision would be reviewed by an immigration judge (“IJ”). (See ECF Nos. 7-1 and 7-2.) Petitioner requested a redetermination hearing on May 24, 2017. (ECF No. 7-2 at PageID: 66.) Petitioner avers - and Respondent does not dispute - that no such custody redetermination hearing has been held. (See, e.g., Pet'r's Reply, ECF No. 8; accord Apr. 20, 2018 Declar. of Elizabeth Burgus ¶ 3, ECF No. 7-7 at PageID: 103 (“The [IJ] took no action of [Petitioner's] request for bond.”).)

         On June 19, 2017, IJ Mirlande Tadal issued a Decision and Order in which she expressly found that several of Petitioner's identify-theft related convictions are offenses covered under Immigration and Naturalization Act (“INA”) § 237(a)(2)(A)(iii).[1] (See ECF No. 7-4 at PageID: 82.) In so doing, IJ Tadal also implicitly found that Petitioner's detention was governed by 8 U.S.C. § 1226(c). See 8 U.S.C. § 1226(c)(1)(B) (“The Attorney General shall take into custody any alien who . . . is deportable by reason of having committed any offense covered in section [1227(a)(2)(A)(iii)] of this title[.]).

         On March 14, 2018, IJ Leo A. Finston held a merits hearing on Petitioner's immigration claims.[2] (Burgus Declar. ¶ 9, ECF No. 7-7 at PageID: 103.) On that date, IJ Finston issued a written order (i) denying Petitioner's requests for asylum and protection under the Convention Against Torture, (ii) granting Petitioner's request for a withholding of removal to Trinidad and Tobago, and (iii) ordering Petitioner's removal from the United States. (See ECF No. 7-5.) On April 9, 2018, Petitioner appealed that decision to the Board of Immigration Appeals. (See ECF No. 7-6.) Petitioner's appeal to the BIA remains pending. (See Burgus Declar. ¶ 10, ECF No. 7-7 at PageID: 104.)

         Petitioner filed his habeas corpus petition on January 25, 2018 (the “§ 2241 Petition”). (ECF No. 1.) Respondent (hereinafter the “Government”) filed its answer to the § 2241 Petition on April 24, 2018. (ECF No. 7.) Petitioner filed his reply on May 16, 2018. (ECF No. 8.)

         III. STANDARD OF REVIEW

         Under 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). The Court has jurisdiction because Petitioner asserts that his continued detention violates due process and he is currently detained within this Court's jurisdiction by a custodian within the jurisdiction. 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).

         IV. ANALYSIS

         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. (ECF No. at PageID: 1.) The Government argues that the current § 2241 Petition should be denied because “Petitioner's detention pursuant to 8 U.S.C. § 1226(c)[3] remains lawful and is not a violation of the Due Process Clause of the Fifth Amendment.” (Gov't Br., ECF No. 7 at PageID: 43.) The Government claims that this “is not an outlier or extraordinary case, and [Petitioner's] detention continues to fulfill the purpose of facilitating deportation and protecting against flight or dangerousness.” (Id. at PageID: 57.)

         In Dryden v. Green, No. 2:18-cv-2686 (SDW), 2018 WL 3062909 (D.N.J. June 21, 2018), Judge Wigenton summarized the current state of the law with ...


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