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Thompson v. Edwards

United States District Court, D. New Jersey

September 17, 2018

ORA THOMPSON, Petitioner,
v.
RON EDWARDS, Respondent.

         Not for Publication

          MEMORANDUM OPINION

          Esther Salas, U.S.D.J.

         It appearing that:

         1. Petitioner Ora Thompson (“Petitioner”) is currently being detained by the Department of Homeland Security, Immigration and Customs Enforcement (“DHS/ICE”) at the Hudson County Jail in Kearney, New Jersey. On January 25, 2018, while she was detained at Hudson County Correctional Facility in Kearny, New Jersey, Petitioner filed the instant Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, challenging her detention pending removal. (D.E. No. 1, Petition (“Pet.”)).

         2. Petitioner is a native and citizen of Dominica who entered the United States in 1991, with authorization to remain in the United States for a temporary period not to exceed February 7, 1992. (D.E. No. 7, Respondent's Answer (“Answer”) at 14).[1]

         3. On July 7, 2016, ICE took Petitioner into custody and served her with a Notice to Appear in removal proceedings, which charged that she is removable from the United States pursuant to 8 U.S.C. § 1227(a)(1)(B), as “[a]n alien who remained in the United States for a time longer than permitted.” (Answer, Ex. A at 3). Petitioner was also charged as an alien with a conviction for an aggravated felony; specifically, illicit trafficking in a controlled substance, as defined at 8 U.S.C. § 1101(a)(43)(B); 8 U.S.C. § 1227(a)(2)(A)(ii); an alien with a conviction for a controlled substance offense pursuant to 8 U.S.C. 1227(a)(2)(B)(i); and as an alien with convictions for two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct pursuant to 8 U.S.C. § 1227(a)(2)(ii). (Id. at 3-4).

         4. On August 10, 2016, an Immigration Judge (“IJ”) held a master calendar hearing. (Id. at 4). At this hearing, Petitioner submitted an application for relief from removal. (Id.).

         5. On October 4, 2016, a different IJ conducted a merits hearing in Petitioner's removal proceedings. (See Answer, Ex. D). Petitioner sought withholding of removal under Section 241(b)(2) of the Act and the Convention Against Torture, and in the alternative, deferral of removal under the Convention Against Torture. (Id. at 4). The IJ found that the Petitioner failed to establish that she would suffer torture at the hands of or at the acquiescence of the Dominica government as a result of her homosexuality as required under the Convention Against Torture. (Id.). The IJ denied Petitioner's requests for relief and ordered her returned to Dominica. (Id. at 13). Petitioner filed an appeal of the IJ's decision with the Board of Immigration Appeals (“BIA”) and on February 26, 2017, the BIA dismissed the appeal. (See Answer, Ex. E at 2). On March 13, 2017, Petitioner filed an appeal of the BIA's dismissal with the Second Circuit. Civil Action No. 17-0726 (2d Cir. 2017). On May 9, 2017, a travel document was issued for Petitioner. (Answer, Ex. A at 4). On June 2, 2017, ICE held a post-order custody review and continued Petitioner's detention. (Id.). On September 28, 2017, the Second Circuit granted Petitioner's motion for stay of removal. (Id.). The appeal is currently pending.

         6. On January 25, 2018, Petitioner filed the instant Petition for a Writ of Habeas Corpus in this Court. (See Pet.). She argues that her detention has been “excessive, ” she has a “likelihood of success in Second Circuit appeal, ” she has been “unable to have due process, ” and she has “not committed a violent crime.” (Id. at 6-8). Petitioner requests that this Court “release [her] on an order of supervision.” (Id. at 8).

         7. Respondent acknowledges that Petitioner has been in immigration custody since July 2016, but argues that because she is detained pursuant to 8 U.S.C. § 1226(c), she is subject to lawful mandatory detention. (Answer at 17). More specifically, Respondent submits that Petitioner's conviction for an aggravated felony and other crimes qualifies as her the type of alien that the statute seeks to detain. (Id. at 21-23).

         8. 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: (i) the petitioner is “in custody, ” and (ii) 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).

         9. The Court has subject matter jurisdiction over this Petitioner under § 2241, because Petitioner was detained within its jurisdiction by a custodian within its jurisdiction, at the time she filed her petition. See Spencer v. Kemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 490-95, 500 (1973).

         10. In 2018, the United States Supreme Court in Jennings v. Rodriguez, 138 S.Ct. 830 (2018), held that the Ninth Circuit Court of Appeals erred by interpreting an implicit six-month limitation on detention pursuant to § 1226(c) absent a bail hearing. Jennings essentially abrogated the Third Circuit Court of Appeals' decisions in Diop v. ICE/Homeland Security, 656 F.3d 221, 231-35 (3d Cir. 2011); Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir. 2015), which read implicit time limitations into statutes such as § 1226(c). The Jennings Court explained,

[Section] 1226 applies to aliens already present in the United States. Section 1226(a) creates a default rule for those aliens by permitting-but not requiring-the Attorney General to issue warrants for their arrest and detention pending removal proceedings. Section 1226(a) also permits the Attorney General to release those aliens on bond, “[e]xcept as provided in [§ 1226 (c)].” Section 1226(c) states that the Attorney General “shall take into custody any alien” who falls into one of the enumerated categories involving criminal offenses and terrorist activities. 8 U.S.C. § 1226(c)(1). Section 1226(c) then goes on to specify that the Attorney General “may release” one of those aliens “only if the ...

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