United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge.
before the Court is the pro se petition for a writ
of habeas corpus of Petitioner, Carlos 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. 6), to which Petitioner has replied. (ECF No. 7). On
December 14, 2018, the Government filed a sur-reply (ECF No.
8). On or about January 2, 2019, Petitioner filed a response
to the sur-reply in the form of a self-styled motion seeking
a remand. (ECF No. 9). For the following reasons, this Court
will grant Petitioner's habeas petition, will order the
Government to provide Petitioner with a bond hearing, and
will in turn deny Petitioner's motion seeking a remand as
Court summarized the factual background of Petitioner's
immigration detention as follows in its opinion denying his
previous habeas petition without prejudice:
Petitioner is a native and citizen of the Dominican Republic
who entered the United States in July 1989 and has remained
in the country since that time as a lawful permanent
resident. (ECF No. 1 at 5). During his time in this country,
Petitioner has received convictions for multiple drug related
offenses including convictions for possession of a controlled
substance with intent to distribute in both 2002 and 2004.
(Id. at 6). Based on this criminal history,
immigration officials took Petitioner into custody on or
about June 5, 2017, and have held him pursuant to 8 U.S.C.
§ 1226(c) since that date. (Id.).
Petitioner first appeared before the immigration courts on
June 15, 2017. (Document 1 attached to ECF No. 6 at 1). On
June 15, 2017, Petitioner requested and was granted an
extension of time so that he could prepare his case.
(Id. at 1-2). On July 19, 2017, Petitioner again
requested an extension, and his hearing was continued to
August 17, 2017. (Id. at 2). Petitioner thereafter
requested another continuance, and his hearing was
rescheduled for September 20, 2017. (Id.). On
September 20, 2017, however, Petitioner filed a motion to
substitute counsel, which was granted. (Id.).
Petitioner apparently also both requested more time to
prepare and filed a motion to terminate removal proceedings
at that time. (Id.). The assigned immigration judge
denied the motion to terminate on October 25, 2017, but
thereafter granted Petitioner's request for more time and
scheduled Petitioner's next hearing for December 7, 2017.
(Id.). Petitioner thereafter requested and received
another continuance through January 3, 2018. (Id.).
On January 3, 2018, Petitioner appeared for a hearing before
an immigration judge and was ordered removed. (Id.
at 2-3). Petitioner apparently filed no further requests for
relief from removal. (Id.). On January 23, 2018,
Petitioner filed an appeal to the Board of Immigration
Appeals (“BIA”). (Id.). On May 23, 2018,
the BIA dismissed Petitioner's appeal and affirmed his
order of removal. (ECF No. 8). Petitioner then filed a
petition for review with the Third Circuit Court of Appeals
accompanied by a motion for a stay of removal.
(Id.). On June 18, 2018, the Clerk of the Third
Circuit entered an order granting Petitioner a temporary stay
of removal pursuant to a standing order of the Court of
Appeals to remain in effect until such time as a motions
panel decided Petitioner's motion for a stay on the
merits. (Third Circuit Docket No. 18-2345 at Document No.
Carlos A. v. Green, No. 18-741, 2018 WL 3492150, at
*1 (D.N.J. July 20, 2018).
November 7, 2018, the Third Circuit vacated the order
granting a temporary stay and entered an order granting
Petitioner a stay of removal until his petition for review is
decided by the Court of Appeals as Petitioner “has made
a sufficient showing on the merits of [Petitioner's]
petition for review to warrant such interim relief.”
(Third Circuit Docket No. 18-2345 at Document No.
3113080540). In that order, the Third Circuit also granted
Petitioner's request for the appointment of counsel and
indicated that a briefing schedule on the petition for review
would be set once counsel had been appointed. (Id.).
Petitioner is thus now subject to a formal stay of removal
entered by an order of the Third Circuit, and it does not
appear that a briefing schedule has been entered by the Third
Circuit as to his petition for review at this time. (Third
Circuit Docket No. 18-2345 Docket Sheet). It thus appears
that Petitioner's litigation of his petition for review,
and in turn his stay of removal, will continue for several
January 17, 2018, Petitioner filed his first petition for a
writ of habeas corpus. (Docket No. 18-741 at ECF No. 1).
Briefing of that petition was completed on June 20, 2018.
(Docket No. 18-741 Docket Sheet). On July 20, 2018, this
Court entered an order and opinion denying that petition
without prejudice. Carlos A., 2018 WL 3492150 at *1.
In so doing, this Court noted that
In Dryden [v. Green, No. 18-2686, 2018 WL
3062909 (D.N.J. June 21, 2018)], this Court held that
detention pursuant to § 1226(c) for just over a year was
not sufficient to render the statute unconstitutional as
applied to the petitioner in a case where the majority of the
delay in the petitioner's removal proceedings was the
fault of the petitioner and the Government had not acted in
bad faith nor been responsible for any significant delay.
Id. at 5. That same reasoning forecloses
Petitioner's request for relief here. As in
Dryden, Petitioner has been detained pursuant to
§ 1226(c) for just over a year, and during that time has
been responsible for virtually all of the delay in his
removal proceedings. The Government was not responsible for
any appreciable delay in his proceedings, and the immigration
courts swiftly decided Petitioner's case once he ceased
requesting delays - indeed, the immigration judge held a
hearing and decided Petitioner's removability issue on
the very same day that Petitioner's hearing was held, and
the BIA decided his appeal in short order. Given the
background of Petitioner's immigration proceedings, and
being mindful of the Third Circuit's admonition in
Chavez-Alvarez that an alien “should not be
rewarded with a bond hearing that they would not otherwise
get under the statute” because the alien had
“merely gam[ed] the system to delay their removal,
” 783 F.3d at 476, this Court finds that
Petitioner's continued detention has not become so
prolonged that it has become arbitrary and unreasonable, and
§ 1226(c) is therefore not unconstitutional as applied
Carlos A., 2018 WL 3492150 at *5. Petitioner
thereafter filed his current habeas petition. (ECF No. 1).