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, Gjergj G., filed pursuant to 28 U.S.C.
§ 2241. (ECF No. 6, 9). The Government filed a response
to the Petition (ECF No. 10), to which Petitioner has replied
(ECF No. 11). 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 and citizen of Albania who entered this country
in September 2017 via the Visa Waiver Program using a forged
Hungarian passport. (ECF No. 1 at 2; Document 1 attached to
ECF No. 10 at 3). Petitioner was initially given permission
to remain in the United States until December 19, 2017.
(Document 1 attached to ECF No. 10 at 3). Petitioner remained
in the United States beyond December 2017, and was arrested
and taken into immigration custody on August 1, 2018.
(Id.). Petitioner has remained in custody without a
bond hearing since that time while he has litigated his
applications for asylum before an immigration judge. (ECF No.
10 at 5).
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).
amended petition, Petitioner contends that his ongoing
detention without release or a bond hearing violates Due
Process. In order to address this claim, this Court must
determine the statutory basis for Petitioner's detention.
The Government argues that because Petitioner entered the
country pursuant to the Visa Waiver Program
(“VWP”), Petitioner is subject to detention
pursuant to 8 U.S.C. § 1187. The Government bases this
argument on 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
While 8 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.
Szentkiralyi v. Ahrendt, No. 17-1889, 2017 WL
3477739, at *2 (D.N.J. Aug. 14, 2017).
to the BIA's determination in A.W., this Court
observed in Szentkiralyi that 8 U.S.C. §
1187(c)(2)(E) “contains no language which expressly
authorizes the detention of VWP aliens” sufficient to
support the BIA's conclusion that the statute provides
authority for the detention of VWP aliens independent of the
general authority to detain aliens pending removal pursuant
to 8 U.S.C. § 1226. Id. at 3. The only language
in § 1187(c)(2)(E) concerning detention instead states
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 in Szentkiralyi 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