United States District Court, D. New Jersey
SELVIN M. R., Petitioner,
CHARLES GREEN, et al., Respondents.
L. LINARES JUDGE
before the Court is the petition for a writ of habeas corpus
of Petitioner, Selvin M. R.., 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).
Petitioner did not file a reply. For the following reasons,
this Court will deny the petition without prejudice.
is a native and citizen of El Salvador who has resided in the
United States since 2008. (ECF No. 1 ¶ 6). In September
2014, Petitioner was convicted of sexual assault in New
Jersey and sentenced to five years' imprisonment. (ECF
No. 6 at 32). On December 15, 2017, upon Petitioner's
release from state criminal custody, Petitioner was taken
into immigration custody and served with a notice to appear
for removal proceedings. (ECF No. 6 at 33). Because
Petitioner had previously been convicted of a crime of moral
turpitude, the Government determined that Petitioner was
subject to mandatory detention pursuant to 8 U.S.C. §
1226(c), and he has thus been confined in immigration
detention without a bond hearing since December 2017. (ECF
No. 6 at 41).
January 25, 2018, Petitioner appeared for a master calendar
hearing before an immigration judge, but the hearing was
adjourned so Petitioner could acquire counsel. (ECF No. 6 at
43-44). As a result of the immigration judge's unplanned
leave and certain technical difficulties on the part of the
immigration court, Petitioner's hearing was rescheduled
for April 12, 2018. (ECF No. 6 at 44). Petitioner and counsel
appeared on that date, and Petitioner's hearing was
adjourned to May 2018 so that counsel could file an
application for asylum. (ECF No. 6 at 44). When Petitioner
appeared on May 17, 2018, he filed applications for asylum,
withholding of removal, and protection under the Convention
Against Torture. (ECF No. 6 at 44). Petitioner was then
scheduled for another hearing in July 2018 after his counsel
rejected an earlier hearing date. (ECF No. 6 at 44). The July
hearing was thereafter adjourned so that an individual merits
hearing could be conducted, which was scheduled for September
27, 2018. (ECF No. 6 at 44). Petitioner requested additional
time to present more evidence, and Petitioner's merits
hearing was rescheduled for December 20, 2018. (ECF No. 6 at
44). Neither party has informed the Court of the outcome of
that hearing, and from the record before the Court it thus
appears that Petitioner remains detained without a final
order of removal.
federal court has jurisdiction over a petition for habeas
corpus only 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).
argues that his ongoing immigration detention violates his
right to Due Process as he has been held for a
constitutionally impermissible amount of time without a bond
hearing.Petitioner bases his Due Process argument
on the Third Circuit's decisions in Diop v.
ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011) and
Chavez-Alvarez v. Warden York County Prison, 783
F.3d 469 (3d Cir. 2015). However, the Supreme Court recently
abrogated the direct holdings of Diop and
Chavez-Alvarez in Jennings v. Rodriguez,
128 S.Ct. 830 (2018), when it held that there was no implicit
reasonableness limitation in § 1226(c). Borbot v.
Warden Hudson Cty. Corr. Facility, 906 F.3d 274, 278-79
(3d Cir. 2018). Diop and Chavez-Alvarez
retain some precedential value, as "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. Thus, even after Jennings,
the "constitutionality of [§ 1226(c) detention
remains] 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 past [certain] thresholds."
Chavez-Alvarez, 783 F.3d at 474 (quoting
Diop, 656 F.3d at 232, 234).
Court's determination of reasonableness must be highly
fact specific. Chavez-Alvarez, 783 F.3d at 474. An
alien can thus show that his detention amounts to an
unconstitutional application of § 1226(c) where he
establishes that the prolonged nature of his detention has
become "so unreasonable [that it] amount[s] to an
arbitrary deprivation of liberty [which] cannot comport with
the requirements of the Due Process Clause." Diyden
v. Green, 321 F.Supp.3d 496, 502 (D.N.J. 2018) (citing
Demore v. Kim, 538 U.S. 510, 532 (2003) (Kennedy, J.
concurring). "[A]liens who are merely gaming the system
to delay their removal should not be rewarded with a bond
hearing that they would not otherwise get under the
statute." Chavez-Alvarez, 783 F.3d at 476.
However, where an alien's detention becomes prolonged
merely because he has pursued valid challenges to his removal
in the absence of bad faith that detention may eventually
become so arbitrary that the Due Process clause requires a
bond hearing. See K.A. v. Green, No. 18-3436, 2018
WL 3742631, at * 4 (D.N.J. Aug. 7, 2018) (finding that
detention of nineteen months in the absence of bad faith on
Petitioner's part warranted a bond hearing where
Petitioner was pursuing a valid petition for review before
the Third Circuit and had received a stay of removal);
see also Carlos A. v. Green, No. 18-13356, 2019 WL
325543, at *4 (D.N.J. Jan. 25, 2019) (finding the same with
respect to a detention of over eighteen months). Generally,
however, detention of just over a year will be insufficient
in and of itself to wan-ant a bond hearing where the
petitioner is responsible for the delay in his or her
immigration proceedings. See, e.g., Carlos A. v.
Green, No. 18-741, 2018 WL 3492150, at *5 (D.N.J. July
20, 2018) (finding that detention for just over 13 months not
unconstitutional where the petitioner was responsible for
"virtually all" of the delay in the proceedings);
Charles A. v. Green, No. 18-1158, 2018 WL 3360765,
at *5 (D.N.J. July 10, 2018) (same); Diyden, 321
F.Supp.3d at 502 03 (finding that detention of just over a
year was not sufficient where the petitioner sought multiple
to the record before this Court, Petitioner has been detained
for fourteen months and is not yet subject to a final order
of removal. Petitioner's detention, however, has largely
been the result of his own requests for continuances or other
delays in his proceedings. Given the procedural history of
Petitioner's immigration proceedings, Petitioner has
failed to show that his ongoing immigration detention has
become so prolonged as to amount to an arbitrary application
of § 1226(c). Petitioner has thus failed to show that
the statute has been applied to him unconstitutionally and
Petitioner's habeas petition is thus denied without
prejudice. Dryden, 321 F.Supp.3d at 502-03.
reasons expressed above, Petitioner's habeas petition,
(ECF No. 1), is DENIED WITHOUT ...