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Carlos L. C. v. Green

United States District Court, D. New Jersey

March 11, 2019

CARLOS L. C, Petitioner,
CHARLES GREEN, Respondent.




         The petitioner, Carlos L. C., [1] is an immigration detainee, currently being held at the Essex County Correctional Facility in Newark, New Jersey. He is proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the following reasons, the habeas petition will be granted insofar as the government will be required to afford the petitioner a bond hearing to justify his continued detention.


         Petitioner, a native and citizen of the Dominican Republic, entered the United States as a lawful permanent resident in March 1996. In August 2009, Petitioner was convicted of criminal sexual contact, under N.J. Stat. Ann. §§ 2C:14-2(c)(4) and 2C:14-3(b). The Department of Homeland Security, Immigration and Customs Enforcement ("ICE"), took Petitioner into custody on December 9, 2016, and commenced removal proceedings against him. It seems that Petitioner has remained in immigration custody under 8 U.S.C. § 1226(c) since that time.

         Petitioner has filed a petition for a writ of habeas corpus, seeking his immediate release on bond, or in the alternative an order directing that he receive an individualized bond hearing at which the government would bear the burden of justifying Petitioner's continued detention. (DE 1.) Petitioner does not dispute the initial basis for his detention, but he asserts that the length of his detention has been unduly prolonged to the point of having become unconstitutional under Diop v. ICE/Homeland Sec, 656 F.3d 221 (3d Cir. 2011).

         I ordered respondent to file an answer to the petition. (DE 2.) I also ordered the government to notify the Court within seven days of Petitioner's release from custody, "as well as any change in the basis for petitioner's immigration detention." (Id.)

         The government filed an answer opposing the petition on behalf of respondent Charles Green, the Warden of the Essex County Correctional Facility. (DE 6.) It argues that the Supreme Court's holding in Jennings v. Rodriguez, 138 S.Ct. 830 (2018), abrogated prior court decisions, including Diop, that used the canon of constitutional avoidance to read a reasonableness limit into § 1226(c). Detention under § 1226(c), says the government, is mandatory until removal proceedings have concluded. (Id., at 8-10.) The Supreme Court, in the government's view, upheld the facial constitutionality of § 1226(c), and an as-applied challenge could succeed only in an extraordinary case. (See Id. at 10-22.) In his reply brief, Petitioner argues that Diop and its progeny were not completely abrogated by Jennings. (See DE 7.) The government submitted a surreply. (DE 8.) Because that surreply was submitted without leave of court, I will disregard it, and caution the government to abide by the local rules in the future.

         III. ANALYSIS

         Under 28 U.S.C. § 2241, a district court may exercise jurisdiction over a habeas petition when the petitioner is in custody and alleges that this custody violates the constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c); Maleng v. Cook, 490 U.S. 488, 490 (1989). A petitioner may seek § 2241 relief only in the district in which he is in custody. United States v. Figueroa, 349 Fed.Appx. 727, 730 (3d Cir. 2009). This Court has jurisdiction over Petitioner's claims as he is detained within this district and alleges that his custody violates the Due Process Clause of the Fifth Amendment.

         Under 8 U.S.C. § 1226(c)(1), certain non-citizens with criminal convictions are subject to mandatory detention while removal proceedings are pending. See Jennings, 138 S.Ct. at 846-47. Petitioner does not explicitly challenge the basis for his detention under § 1226(c); rather, his petition includes a number of irrelevant arguments directed to detention under 8 U.S.C. § 1231(a)(6).[2] Petitioner generally claims, however, that his detention has been unduly prolonged, and that courts, including Diop, have found that detention without a bond hearing can, after a certain period, become unconstitutional. (See DE 1 at 5-10.)

         In Demote v. Kim, 538 U.S. 510 (2003), the Supreme Court held § 1226(c) to be constitutional on its face. It did so, however, on the assumption that most resulting detentions would be relatively brief. Id. at 517-31 ("In sum, the detention at stake under § 1226(c) lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal."). In Diop, the Third Circuit applied the canon of constitutional avoidance and held that § 1226(c) "authorizes only mandatory detention that is reasonable in length." Diop, 656 F.3d at 231-35. Thus the statute contains an implicit requirement that detained persons must, at some point, receive bond hearings to warrant ongoing detention. The point at which a bond hearing would be required, however, would depend on all the facts of the case. In Chavez-Alvarez v. Warden, York County Prison, 783 F.3d 469 (3d Cir. 2015), the Third Circuit confirmed that the point at which detention under § 1226(c) crosses the permissible line, but announced a rule of thumb that detention would become constitutionally suspect at some point between 6 and 12 months. See Id. at 473-78.[3]

         In Jennings, supra, however, the Supreme Court abrogated the holdings of Diop and Chavez-Alvarez, as a matter of statutory interpretation. Specifically, Jennings held that § 1226(c) does not require bond hearings to justify ongoing detention, and that the canon of constitutional avoidance may not be employed to read such a requirement into the statute. Id. at 842, 846-47. The government acknowledges, however, that Jennings did not directly analyze the constitutionality of particular detentions under § 1226(c).

         Putting these holdings together, I agree with the analysis of Judge Wigenton that one challenge to a § 1226(c) detention still remains available: "an individualized as applied constitutional challenge to the statute." Diyden v. Green,321 F.Supp.3d 496, 501-02 (D.N.J. 2018) (citing Jennings, 138 S.Ct. at 851-52). To put it another way, for a petitioner in this situation, "Jennings leaves open only the ...

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