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Oscar B. v. Warden, Essex County Correctional Facility

United States District Court, D. New Jersey

April 10, 2019

OSCAR B., Petitioner,


          Kevin McNulty, United States District Judge.


         The petitioner, Oscar B., [1] is an immigration detainee 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 to the extent that he will be given a bond hearing.


         Petitioner, a native and citizen of Panama, entered the United States on a visa in January 2001.[2] He became a lawful permanent resident on October 27, 2003, and he is married to a U.S. citizen, with whom he has children. In March 2013, petitioner was convicted of importing 500 grams or more of cocaine under 21 U.S.C. §§ 952 and 96O(b)(2)(B)(ii). Petitioner was sentenced to 108 months' imprisonment, though his sentence was subsequently reduced to 87 months. Upon his completion of this sentence, on November 20, 2017, the Department of Homeland Security, Immigration and Customs Enforcement, ("ICE") took petitioner into custody pursuant to 8 U.S.C. § 1226(c). Shortly thereafter, ICE commenced removal proceedings against petitioner, and he has remained in immigration custody since that time.

         Petitioner explains that, in January 2018, he filed a motion in immigration court to terminate his removal proceedings, arguing that he should be considered a dejure U.S. citizen.[3]An immigration judge ("IJ") denied this motion on February 13, 2018, and petitioner appealed the decision to the Board of Immigration Appeals ("BIA"). On May 22, 2018, the BIA remanded the case to the IJ "because the record did not clearly outline the basis of the IJ's decision." (DE 1 at 10.) In June 2018, the IJ again denied petitioner's motion to terminate the proceeding, issuing an opinion finding that petitioner had failed to prove he had a claim to citizenship, though petitioner notes that the IJ found that the immigration court lacked jurisdiction to review the initial denial of petitioner's naturalization petition. Petitioner indicates that he again appealed this decision and that, when he filed this habeas proceeding, his appeal remained pending.

         Petitioner filed this petition for writ of habeas corpus, seeking an individualized bond hearing to justify his continued detention. (DE 1.) Petitioner does not dispute the initial basis for his detention, but he asserts that his detention has been unduly prolonged to the point of having become unconstitutional under the decisions of the Court of Appeals for the Third Circuit in Diop v. ICE/Homelcmd Sec, 656 F.3d 221 (3d Cir. 2011), Leslie v. Attorney General of U.S., 678 F.3d 265 (3d Cir. 2012), and Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir. 2015), among other cases. (See DE 1.)

         I ordered the government to file an answer responding to the petition. (DE 2.) I also ordered the government to notify the Court within seven days of petitioner's release from custody, should that occur, "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 12.) It argues that the Supreme Court's holding in Jennings v. Rodriguez, 138 S.Ct. 830 (2018), abrogated the case law relied on by petitioner and further established that detention under § 1226(c) is mandatory until removal proceedings have concluded. (Id. at 4-7.) It urges that the Supreme Court upheld the facial constitutionality of § 1226(c), and it contends that as-applied challenges to that section are appropriate only in extraordinary cases. (See Id. at 7-20.)

         In his reply brief, petitioner argues that the relevant Third Circuit cases were not completely abrogated by Jennings. (See DE 9, at 5-9.) He contends that, even after Jennings, his prolonged detention without a bond hearing must be found unconstitutional. (Id. at 10-16.) Petitioner also urges that he is likely in the end to avoid removal. (Id. at 16-28.)

         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 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 challenge the basis for his detention under § 1226(c). Instead, he contends that his detention has been unduly prolonged. He cites Third Circuit cases such as Diop, Leslie, and Chavez-Alvarez, which held that detention without a bond hearing can, after a certain period, become unconstitutional.

         In Demore 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, it found that the statute contains an implicit requirement that detained persons, 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 the Third Circuit confirmed that there is no set point at ...

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