United States District Court, D. New Jersey
SUSAN D. WIGENTON, UNITED STATES DISTRICT JUDGE.
before the Court is the amended petition for a writ of habeas
corpus of Petitioner, Emila N., filed pursuant to 28 U.S.C.
§ 2241. (ECF No. 7, 10). The Government filed a response
to the Petition (ECF No. 16), to which Petitioner has replied
(ECF No. 18). Also before the Court is Petitioner's
motion seeking the entry of an order to show cause (ECF No.
3). For the following reasons, this Court will grant
Petitioner's habeas petition and direct an immigration
judge to provide Petitioner with a bond hearing pursuant to 8
U.S.C. § 1226(a) within ten days. Petitioner's
motion seeking an order to show cause shall in turn be denied
is a native of Albania who entered the United States through
the Visa Waiver Program using a falsified Hungarian passport
in September 2017. (Document 2 attached to ECF No. 16 at 3).
Petitioner was initially granted permission to enter the
United States for a period not to exceed ninety days, but she
remained in the country after that permission expired.
(Id.). As a result, Petitioner was taken into
custody in August 2018 pursuant to the terms of the Visa
Waiver Program. (Id.; Document 3 attached to ECF No.
16 at 6). Petitioner thereafter filed an application for
asylum, the only form of relief from removal available to
Visa Waiver Program violators, which remains pending at this
time. (Document 3 attached to ECF No. 16 at 9). Since being
taken into custody in August 2018, Petitioner has continually
remained in custody without a bond hearing. (ECF No. 16 at
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).
argues in her habeas petition that her ongoing detention
violates Due Process, and that she is therefore entitled to
either release or a bond hearing. In order to address this
argument, this Court must first determine the statutory basis
for Petitioner's detention. The Government contends that
Petitioner is subject to detention pursuant to 8 U.S.C.
§ 1187 because she entered this country pursuant to the
Visa Waiver Program (“VWP”). In making that
argument, the Government relies upon the BIA's
interpretation of the VWP statute in its decision in the
Matter of A.W., 25 I&N Dec. 45 (BIA 2009).
Court has explained, the VWP is a special program which
permits aliens from certain specified countries to enter the
United States for a period of up to ninety days without first
obtaining a visa. See Shehu v. Att'y Gen., 482
F.3d 652, 654 (3d Cir. 2007). While the VWP makes a brief
visit to this country more expedient, that expediency comes
at a cost - VWP entrants voluntarily waive their right to
challenge the basis for their removal and are permitted to
challenge their removal only by way of an application for
asylum, withholding of removal, or relief under the
Convention Against Torture. Id.; see also 8
U.S.C. § 1187(b). As a result, a final order denying
those three forms of relief is considered a final removal
order for VWP entrants, and they may be removed without
further process once such an administratively final order is
issued. See Sutaj v. Rodriguez, No. 16-5092, 2017 WL
66386, at *2 (D.N.J. Jan. 5, 2017). These special
restrictions apply to all who enter the United States through
the VWP, even those who do so fraudulently. Id.
U.S.C. § 1226 and its various subsections provides the
basis for the detention of most aliens during the pendency of
their removal proceedings prior to the issuance of a final
order of removal, the BIA determined in A.W. that
VWP aliens are not subject to detention under § 1226,
but are instead detained pursuant to 8 U.S.C. §
1187(c)(2)(E). 25 I. & N. Dec. at 47-48. The BIA based
this decision on the fact that the authority to grant bond
vested in immigration judges is limited, that such authority
arises only in the context of areas where that authority has
been explicitly delegated to them by the Attorney General,
and that the authority to conduct bond hearings which had
been delegated arose only in standard removal proceedings
following a notice to appear where the alien's detention
is controlled by the subsections of 8 U.S.C. § 1226.
Id. Without detailed explanation, the BIA
distinguished VWP aliens by stating that “the statutory
authority for [a VWP alien's] detention is contained in .
. . 8 [U.S.C. §] 1187(c)(2)(E) . . . not . . . 8 U.S.C.
§ 1226.” Id. at 47. The BIA explained
this determination merely by noting that the authority to
grant bond to aliens “detained” pursuant to
§ 1187 no longer belonged to the Attorney General, and
thus had not been delegated to the immigration judges who
derived their authority from a delegation from the Attorney
General. Id. at 48.
v. Ahrendt, No. 17-1889, 2017 WL 3477739, at *2 (D.N.J.
Aug. 14, 2017).
Szentkiralyi, this Court observed that, contrary to
the Board's determination in A.W., §
1187(c)(2)(E) “contains no language which expressly
authorizes the detention of VWP aliens” which would
support the conclusion that the statute provides authority
for the detention of VWP aliens independent of the general
authority to detain aliens pending removal pursuant to §
1226. Id. at 3. As this Court then observed, the
only language in that section as to detention stated that the
statute was intended not to create any right or duty
regarding the “removal or release” of detained
aliens. Id. (quoting 8 U.S.C. § 1187(c)(2)(E).
Because § 1187(c)(2)(E) is silent as to detention
authority, and as Congress explicitly provided for pre-final
order detention in 8 U.S.C. § 1226(a), this Court
concluded that the BIA's determination in A.W.
was not entitled to Chevron deference. Id.
at *3-5. In sum, this Court determined in
Szentkiralyi that the VWP does not have its own
detention provision, and the detention of an alien in asylum
proceedings must instead arise from one of the other
statutory provisions expressly covering aliens subject to
detention during their removal proceedings - 8 U.S.C. §
1225 or 1226. Id. at *4-5.
Court is not persuaded by the submissions of the Government
in this matter to question the determinations made in
Szentkiralyi. As a result, no deference will be
given to the decision of the BIA in A.W. However,
this Court does acknowledge the Government's concern that
Petitioner's case does not fit neatly into any of the
normal detention categories - she is not an arriving alien
subject to detention under § 1225, nor is she truly
subject to a final, executable order of removal that would
subject her to detention under § 1231 insomuch as she is
still in asylum proceedings. Likewise, that Petitioner has
not been convicted of an applicable offense prevents her
detention under 8 U.S.C. § 1226(c) - the statute applied
in Szentkiralyi. While the Government contends that
Petitioner has not been provided with the form it believes is
required to trigger § 1226(a) detention - a notice to
appear - that section is the only one which appears would
otherwise be applicable to those such as Petitioner who
remain in asylum proceedings and have not committed an
applicable crime. See Sutaj, 2017 WL 66386 at *5.
Given the background of this matter, and the purposes of the
visa waiver statute in general, to reject the applicability
of § 1226(a) would essentially provide Petitioner a
windfall, as there would be no applicable statutory basis for
Petitioner's detention if § 1226(a) were deemed
inapplicable and ...