United States District Court, D. New Jersey
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.”)).
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).
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).
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
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.
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).
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).
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
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).
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 ...