United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge.
before the Court is the petition for a writ of habeas corpus
of Petitioner, Daniel A., filed pursuant to 28 U.S.C. §
2241. (ECF No. 1). Following an order to answer, the
Government filed a response to the Petition (ECF No. 4).
Petitioner did not file a reply. (ECF Docket Sheet). For the
following reasons, this Court will deny Petitioner's
habeas petition without prejudice.
is a native and citizen of Haiti who entered the United
States as a lawful permanent resident in March 1982.
(Document 1 attached to ECF No. 4 at 2). During his time in
this country, Petitioner has amassed a lengthy criminal
history including 2003 convictions for promoting prison
contraband and unlawful possession of marijuana in New York,
a 2006 conviction for criminal possession of marijuana in New
York, and a 2013 conviction for robbery in New York.
(Id.). Following Petitioner's release from
prison on his robbery conviction, Petitioner was served with
a notice to appear and taken into immigration detention
pursuant to 8 U.S.C. § 1226(c) on April 23, 2015.
(Id. at 3). In November 2015, however, Petitioner
received a bond hearing in New York pursuant to the Second
Circuit's now vacated decision in Lora v.
Shanahan, 804 F.3d 601 (2015), vacated, 138
S.Ct. 1260 (2018), and was released on $1, 500 bond.
(Document 1 attached to ECF No. 4 at 3). This bond grant was
eventually overturned in July 2016 by the Board of
Immigration Appeals. (Id. at 5).
Petitioner appeared for several hearings in his removal
proceedings prior to his release, upon his release on bond
Petitioner ceased to attend his immigration hearings.
(Id. at 3-4). It appears that Petitioner was briefly
committed to a mental hospital in Queens in late November
2015. (Id. at 4). Based on this commitment,
Petitioner failed to attend an immigration hearing on
November 30, 2015. (Id.). Petitioner also failed to
attend his next scheduled hearing in April 2016.
(Id.). At that time, Petitioner's previous
immigration counsel moved to withdraw from his representation
as he did not know where Petitioner was and could not proceed
on his behalf as such. (Id.). An immigration judge
granted that request. (Id.).
the April 2016 hearing, the immigration judge also raised the
issue of Petitioner's competency to proceed with his
removal proceedings. (Id. at 4-5). The Government at
that time informed the immigration judge that it believed
that Petitioner's presence was required to make any
determination as to his competency, and objected to the
immigration judge's desire to administratively close
Petitioner's removal proceedings. (Id. at 5).
The Government also expressed at that time that it had
learned that Petitioner may have been arrested on weapons
charges, though the record does not clearly indicate the
nature of that arrest or its eventual result. (Id.).
Another hearing was then held in May 2016, but Petitioner
again failed to attend. (Id.). The immigration judge
then required the Government to update the court as to
Petitioner's detention status, if any, and ordered the
Government to show cause why Petitioner's case should not
be administratively closed. (Id.). The immigration
judge held another hearing in January 2017, which Petitioner
again failed to attend. (Id. at 6). At that hearing,
the immigration judge refused to conduct removal proceedings
in absentia and again adjourned Petitioner's proceedings.
(Id.). Prior to the next scheduled hearing, however,
the immigration judge ordered Petitioner's case
administratively closed on April 13, 2017. (Id.).
The Government thereafter filed two motions to reopen
Petitioner's proceedings which were denied in September
2017 and January 2018. (Id.).
March 12, 2018, however, the Government located Petitioner
and took him back into immigration detention pursuant to 8
U.S.C. § 1226(c). (Id.). Having arrested
Petitioner, the Government filed a third motion to reopen
Petitioner's removal proceedings, which was granted on
May 11, 2018. (Id.). On June 20, 2018, Petitioner
and his new attorney appeared for a hearing in his removal
proceedings. (Id. at 7). At that hearing, the
competency issue was again raised, at which point it was
determined that a hearing on that issue was required pursuant
to the Board of Immigration Appeals' decision in
Matter of M-A-M-, 25 I&N Dec. 474 (2011).
(Document 1 attached to ECF No. 4 at 7). Both parties were
instructed to provide documentation as to the competency
issue and a hearing was scheduled for August 2018.
(Id.). At the June hearing, the immigration judge
also noted that Petitioner's prior bond hearing, which
occurred under the defunct decision in Lora, was no
longer applicable, and that Petitioner was subject to
mandatory detention under § 1226(c). (Id.). The
parties appeared again on August 10, 2018, at which point
Petitioner's attorney noted that Petitioner wished to
have a psychological evaluation, but could not afford one.
(Id. at 7-8). The immigration judge again instructed
the parties to prepare documents on the competency issue, and
scheduled a new hearing for September 13, 2018, at which
point both the competency issue and Petitioner's request
for relief from removal would be addressed. (Id.).
As of the filing of the Government's answer in this
matter, that hearing was still scheduled to occur, though it
is not clear what, if anything, occurred at the hearing if it
was held. (Id. at 8- 9). What is clear, however, is
that since being taken into custody in March, Petitioner has
been detained pursuant to § 1226(c) for eight months.
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). As
Petitioner is currently detained within this Court's
jurisdiction, by a custodian within the Court's
jurisdiction, and asserts that his continued detention
violates due process, this Court has jurisdiction over his
claims. 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).
petition, 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 what he contends
is meaningful progress in his removal proceedings or a bond
hearing since being arrested once again in 2018. This
argument arises out of the Third Circuit decisions in
Diop v. ICE/Homeland Sec., 656 F.3d 221, 231-35 (3d
Cir. 2011), and Chavez-Alvarez v. Warden York County
Prison, 783 F.3d 469 (3d Cir. 2015). As this Court
recently explained in Dryden v. Green, 321 F.Supp.3d
496, 500-02 (D.N.J. 2018), both Diop and
Chavez-Alvarez limited the length of time an alien
could be held without bond under § 1226(c) based on an
application of the canon of constitutional avoidance - a use
of the canon which the Supreme Court rejected in its recent
decision in Jennings v. Rodriguez, 538 U.S. ___,
___, 138 S.Ct. 830, 846-47 (2018). Thus, the Supreme Court,
in deciding Jennings abrogated the direct holdings
of Diop and Chavez-Alvarez. See, e.g.,
Borbot v. Warden Hudson Cnty. Corr. Facility, ___ F.3d
___, 2018 WL 4997934, at *4 (3d Cir. Oct. 16, 2018).
the Third Circuit and this Court have recognized, however,
the abrogation of the constitutional avoidance holdings of
Diop and Chavez-Alvarez did not rob those
cases of all effect - “Jennings did not call
into question [the] constitutional holding in Diop
[and Chavez-Alvarez] that detention under §
1226(c) may violate due process if unreasonably long.”
Id.; see also Dryden, 321 F.Supp.3d at 502.
Even after Jennings, it remains true that the
“constitutionality of [§ 1226(c) detention] is a
function of the length of the detention [and t]he
constitutional case for continued detention without inquiry
into its necessity becomes more and more suspect as detention
continues, ” and “any determination on
reasonableness [must be] highly fact specific.”
Chavez-Alvarez, 783 F.3d at 474-75; see also
Diop, 656 F.3d at 232, 234. Ultimately, the detention of
an alien will rise to the level of an unconstitutional
application of § 1226(c) where the alien's detention
becomes so prolonged as to be “so unreasonable [that
it] amount[s] to an arbitrary deprivation of liberty [which]
cannot comport with the requirements of the Due Process
Clause.” Dryden, 321 F.Supp.3d at 502; see
also Demore, 538 U.S. at 432; Chavez-Alvarez,
783 F.3d at 474. It is also the case, however, that
“aliens who are merely gaming the system to delay their
removal should not be rewarded with a bond hearing that they
would otherwise not get under the statute.”
Chavez-Alvarez, 783 F.3d at 476. Since
Jennings, this Court and others in this District
have applied this framework and have found that detention for
just over a year pursuant to § 1226(c) is insufficient
to amount to an arbitrary deprivation of liberty and will
thus not usually suffice to prove that the statute has been
unconstitutionally applied. See, e.g., Dryden, 321
F.Supp.3d 496, 500-03 (detention for just over a year not
unconstitutional); Charles A. v. Green, No. 18-1158,
2018 WL 3350765, at *5 (same); Carlos A. v. Green,
No. 18-741, 2018 WL 3492150, at *5 (detention for just over
13 months not unconstitutional). Significantly longer periods
of detention, however, have been determined to be so
prolonged as to be arbitrary without a bond hearing. See,
e.g., K.A. v. Green, No. 18-3436, 2018 WL 3742631, at *
4 (D.N.J. Aug. 7, 2018) (detention of nineteen months in the
absence of bad faith on Petitioner's part warranted a
bond hearing); C. A. v. Green, No., 2018 WL 4110941,
at *5-6 (D.N.J. Aug. 29, 2018) (detention of fifteen months
in the absence of bad faith sufficient to warrant a bond
hearing under the circumstances).
matter, Petitioner contends that his continued detention
under § 1226(c) without a bond hearing violates Due
Process because, despite the passage of several years since
he was first placed into removal proceedings, the Government
has failed to make what he believes to be meaningful progress
towards a competency determination, and that his removal
proceedings cannot proceed until this issue is addressed.
However, Petitioner's argument largely ignores the fact
that the greatest impediment to progress on that issue thus
far has been Petitioner himself. Upon receiving the benefit
of a bond hearing under Lora and being released on
bond, Petitioner disappeared and ceased to appear for
immigration hearings or inform his former counsel of his
whereabouts. This disappearing act on Petitioner's part
resulted both in the administrative closure of his case and
the immigration judge preventing the Government from moving
forward either with competency issues or a removal order in
absentia. It is Petitioner himself, rather than any dilatory
action on the Government's part, which has prevented
forward movement in Petitioner's removal proceedings.
According to the information available in the current record,
the Government and immigration court have attempted to move
forward on the competency issue and towards a resolution of
Petitioner's removal proceedings since the resumption of
those proceedings in June 2018. On this record, given
Petitioner's responsibility for ...