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Viegas v. Green

United States District Court, D. New Jersey

March 29, 2019

JOAO DE OLIVEIRA VIEGAS, Petitioner,
v.
WARDEN CHARLES GREEN, Resnnnrient.

          OPINION

          MADELINE COX ARLEO UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This matter has been opened to the Court by Petitioner's filing of a habeas petition pursuant to 28 U.S.C. § 2241, asserting that his continued detention under § 1226(c) without an individualized bond hearing is an unconstitutional violation of due process under the Fifth Amendment. For the reasons explained in this Opinion, the Court will grant the writ of habeas corpus and direct the government to provide Petitioner with an individualized bond hearing before an immigration judge within 7 days, pursuant to the standards set forth in Diop v. ICE/HomelandSec, 656 F.3d 221, 231-35 (3d Cir. 2011).

         II. FACTUAL BACKGROUND

         Petitioner is a native and citizen of Portugal. See Exhibit to the Declaration of Daniel W. Meyler ("Ex.") A (Record of Deportable/Inadmissible Alien). He was first admitted to the United States as a lawful permanent resident in April 1967, when he was about three years old. Ex. A at 2. In 1996, Petitioner was arrested for possession of marijuana, and, in 1997, he pled guilty to charges of intent to distribute and was sentenced to 100 hours of community service and fined $2, 175. Ex. A at 3. In 2012, Petitioner was convicted of possessing approximately 5 grams of marijuana. Ex. A at 3.

         On December 6, 2017, Petitioner was arrested by U.S. Immigration and Customs Enforcement ("ICE"). Ex. B (Notice of Custody Determination). On or around December 12, 2017, the Department of Homeland Security ("DHS") filed a Notice to Appear with the Immigration Court charging Petitioner as removable pursuant to Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA") for conviction of a violation of "any law or regulation . .. relating to a controlled substance, ... other than a single offense involving possession for one's own use of 30 grams or less of marijuana." Ex. C (Notice to Appear) at 3.

         Petitioner's removal proceedings are currently pending before the Immigration Court. On December 27, 2017, Petitioner appeared in Immigration Court for a master calendar hearing and a bond hearing; Petitioner requested an adjournment for additional time to prepare. Decl. of Elizabeth Burgus ("Burgus Decl.") ¶ 3.

         On or about April 25, 2018, Petitioner appeared for a master calendar hearing before an immigration judge. That hearing was adjourned to June 6, 2018 to allow Petitioner time to prepare and file an application for relief from removal. Burgus Decl. ¶ 5.

         On June 6, 2018, Petitioner appeared for a master calendar hearing before an immigration judge. That hearing was adjourned to July 25, 2018 to allow Petitioner time to prepare. Burgus Decl. ¶ 6.

         On July 25, 2018, Petitioner appeared for a master calendar hearing before an immigration judge. That hearing was adjourned to September 12, 2018 to allow Petitioner time to prepare and file an application for relief from removal. Burgus Decl. ¶ 7, On September 12, 2018, Petitioner appeared for a master calendar hearing before an immigration judge. That hearing was adjourned to October 17, 2018 to allow Petitioner time to prepare. Burgus Decl. ¶ 8.

         On October 17, 2018, Petitioner appeared for a master calendar hearing. At that hearing, he filed an application for relief from removal. That hearing was adjourned to January 14, 2019 for an individual calendar hearing on the merits. Burgus Decl. ¶ 9.

         Petitioner's counsel recently advised the Court that Petitioner's case is still pending before the Immigration Court, and his next hearing is scheduled for April 12, 2019. See ECF No. 10.

         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 his 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 ...


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