United States District Court, D. New Jersey
JOSE L. LINARES, JUDGE
before the Court is the petition for a writ of habeas corpus
of Petitioner, Reginaldo C, filed pursuant to 28 U.S.C.
§ 2241. (ECF No. 1). Following an order to answer, the
Government has filed responses to Petitioner's petition,
(ECF Nos. 6, 8), and Petitioner has filed a reply, (ECF No.
7). For the following reasons, Petitioner's habeas
petition is denied without prejudice.
is a native and citizen of Brazil who entered the United
States in December 1998 as a non-immigrant temporary visitor
with authorization to remain in the United States until May
31, 1999. (ECF No. 6-1 at 2-3). Petitioner, however, did not
depart and remained in the United States without
authorization. (ECF No. 6-1 at 3). During his time in this
country, received a conviction for driving under the
influence of liquor ("DUI") in May 2011, and was
thereafter arrested in June 2017 for drug possession. (ECF
No. 6-1 at 3). The drug charged was later reduced to a
disorderly conduct charge in April 2018. (ECF No. 6-1 at 23).
Petitioner was in custody on the drug charge, he was served
with a notice to appear, taken into immigration custody
pursuant to 8 U.S.C. § 1226(a), and charged with being
removable based on his overstay. (ECF No. 6-1 at 4).
Petitioner thereafter requested a bond hearing. (ECF No. 6-1
at 9-11). On May 7, 2018, an immigration judge conducted a
bond hearing and denied Petitioner bond after concluding that
Petitioner's DUI conviction and drug charged proved him
to be a danger to the community. (ECF No. 6-1 at 18).
Petitioner thereafter requested and received a custody
redetermination hearing on May 23, 2018. (ECF No. 6-1 at 23).
At that time, the immigration judge again denied Petitioner
bond, finding that Petitioner's DUI conviction and his
drug charge, which the immigration judge noted had resulted
in a disorderly conduct charge, continued to indicate he was
a danger to the community. (ECF No. 6-1 at 23). On that same
day, the immigration judge also ordered Petitioner removed.
(ECF No. 6-1 at 20-21). Petitioner ultimately appealed, and
the Board of Immigration Appeals remanded the case for a
written or oral decision on the record in July 2018. (ECF No.
6-1 at 14). On August 20, 2018, the immigration judge
rendered that decision and returned the matter to the Board.
(ECF No. 6-1 at 14). As of the last filing in this matter,
Petitioner's appeal remained pending before the Board,
and Petitioner therefore remains detained pursuant to 8
U.S.C. § 1226(a). (ECF No. 6-1 at 14).
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 (1973); see also
Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
petition, Petitioner contends that he has been held overlong
and that his continued detention absent a new bond hearing
would therefore violate Due Process under the Third
Circuit's decisions in Diop v. ICE/Homeland Sec,
656 F.3d 221 (3d Cir. 2011), and Chavez-Alvarez v. Warden
York Cty. Prison, 783 F.3d 469 (3d Cir. 2015), both of
which were abrogated in part by the Supreme Court's
recent decision in Jennings v. Rodriguez, 138 S.Ct.
830 (2018). Both of those cases, however, were concerned only
with mandatory detention without bond pursuant to 8 U.S.C.
§ 1226(c), not discretionary detention under §
1226(a), the provision applicable to Petitioner, who has
already received both a bond hearing and a bond
redetermination hearing. See Borbot v. Warden Hudson Cty.
Con: Facility, 906 F.3d 274, 277-80 (3d Cir. 2018). The
analysis required for evaluating the lawfulness of mandatory
detention under § 1226(c) announced in Diop and
Chavez-Alvarez is "inappropriate in the context
of § 1226(a)," and provides no basis for relief for
those who have received "meaningful process" in the
form of a bona fide bond hearing before an immigration judge.
Id. at 278-79. Indeed, where a Petitioner has
received a bona fide bond hearing, this Court is without
jurisdiction to review the immigration judge's
discretionary decision to deny bond. Id. at 279;
see also 8 U.S.C. § 1226(e) ("No court may
set aside any action or decision by [immigration officials]
under this section regarding the detention or release of any
alien or the grant, revocation, or denial of bond or
parole."); Pena v. Davies, No. 15-7291, 2016 WL
74410, at *2 (D.N.J. Jan. 5, 2016). Once an alien has
received a bond hearing before an immigration judge, this
Court may therefore not review the judge's determination
as to bond, and may not order a second bond hearing without
proof of some "constitutional defect" or some other
legal violation that in some way rendered the bond hearing
less than bona fide. Borbot, 906 F.3d at 279;
Pena, 2016 WL 74410, at *2-3; Harris v.
Herrey, No. 13-4365, 2013 WL 3884191, at *1 (D.N.J. July
matter, Petitioner contends only that his detention has
become overlong and that he is therefore entitled to a bond
hearing. Petitioner, however, has already received both a
bond hearing and a bond redetermination hearing. In his
filings, Petitioner has not identified any constitutional
defect nor in any way alleged facts which, if proven, would
show that his bond hearings were anything less than bona
fide. It is thus clear that Petitioner has received all of
the meaningful process to which he is due, and that
Petitioner has failed to show that he is entitled to further
relief via his current habeas petition. See Borbot,
906 F.3d at 277-79; Pena, 2016 WL 74410 at *2 3.
Petitioner's disagreement with the immigration
judge's finding that Petitioner was a danger to the
community and should therefore not be released on bond does
not alter this analysis. See 8 U.S.C. §
1226(e). Petitioner's petition is therefore denied
reasons expressed above, this Court denies Petitioner's
petition for a writ of habeas corpus, (ECF No. 1), without
prejudice. An appropriate Order accompanies this Opinion.