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Michael D. R. v. Green

United States District Court, D. New Jersey

April 12, 2019

MICHAEL D. R., Petitioner,
CHARLES GREEN, Respondent.




         Presently pending before the Court is Petitioner's amended habeas corpus petition challenging his prolonged immigration detention pursuant to 28 U.S.C. § 2241 (at ECF No. 10; hereinafter, the “Petition”). Additionally pending are a number of motions and other applications filed by Petitioner that also seek to have this Court order his immediate release from immigration custody. (See, e.g., ECF Nos. 37 and 40.) For the reasons stated herein, the Petition is denied. Petitioner's myriad other applications for immediate release are likewise denied. This matter is now closed and Petitioner's renewed application for the appointment of counsel (at ECF No. 36) is therefore also denied.


         a. Factual Background

         Petitioner is an immigration detainee who has been held in the Essex County Correctional Facility (“ECCF”), located in Newark, New Jersey, by United States Immigration and Customs Enforcement (“ICE”) since June 25, 2018. (See, e.g., ECF No. 19.) The record conclusively established the following facts underlying his present detention.

         Petitioner is a citizen of Liberia who lawfully entered the United States in 1986. (See, ECF No. 10 at PageID: 164; ECF No. 41-2.) On July 5, 1990, Petitioner was convicted of possession of crack cocaine with intent to distribute. (See ECF No. 42-1.) On May 1, 1991, Petitioner was convicted of second-degree rape. (Id.) On November 25, 1997, an immigration judge (“IJ”) ordered Petitioner's removal from the United States. (ECF No. 41-2.) Petitioner was subsequently deported to Liberia on January 30, 1998. (ECF No. 23-1 at PageID: 271.) Petitioner thereafter “illegally re-entered the United States without being admitted, inspected or paroled by an Immigration Official” on or about June 17, 1998, and has remained in this country without legal authorization since that time. (Id.; see also ECF No. 41-9.)

         On April 15, 2014, the United States Department of Homeland Security (“DHS”) reinstated Petitioner's 1997 removal order. (ECF 41-4.) On July 23, 2014, Petitioner - who was then being detained by immigration officials - was served with notice of that reinstatement. (Id.) At that time, Petitioner claimed fear of persecution and torture if he were returned to Liberia, i.e., he requested “withholding only” protection. (ECF No. 23-1 at PageID: 271.) In other words, Petitioner applied for protection against being deported to Liberia specifically; the validity of Petitioner's underlying 1997 removal order was not - and is not - in dispute. Petitioner's withholding only claims were referred to an IJ for adjudication on October 28, 2014. (Id.) On July 13, 2015, Petitioner was released on bond from his prior stint in immigration custody. (ECF No. 41-9.) On July 21, 2016, the IJ deemed Petitioner's withholding application abandoned in light of his failure to appear at a hearing on that date; Petitioner was not in immigration custody at that time. (ECF No. 41-11; accord ECF No. 10 at PageID: 184.) The IJ accordingly closed Petitioner's withholding only matter and referred Petitioner's case back to the DHS for purposes of removing Petitioner. (Id.)

         Thereafter, on June 25, 2018, Immigration and Customs Enforcement (“ICE”) officials arrested Petitioner; he has been continuously detained by immigration officials at ECCF since that time. (ECF No. 41-1.) On September 12, 2018, Petitioner moved to reopen his withholding only proceedings. (ECF No. 41-13.) On October 16, 2018, an IJ reopened that matter; Petitioner's withholding only action is now pending in immigration court in New York City. (ECF No. 41-14.) A merits hearing on Petitioner's withholding only application is presently scheduled for May 3, 2019. (ECF No. 41-16.)

         On October 5, 2018 - approximately 102 days after Petitioner's present detention at ECCF began - ICE informed Petitioner that his “custody status [had] been reviewed and . . . that [he would] not be released from the custody of [ICE] at [that] time.” (ECF No. 10 at PageID: 187.) On December 27, 2018 - after Petitioner had been detained for approximately 185 days - an IJ held a bond hearing and formally denied Petitioner's request for release. (ECF No. 41-15.) Petitioner notes that his bond application was denied because “the IJ found him to be a danger to the community and a flight risk.” (ECF No. 21.) The IJ's December 27th order denying Petitioner's request to be released on bond expressly states that any appeal of that Order was due on or before January 28, 2019. (ECF No. 41-15.) Respondent (hereinafter, the “Government”) avers - and Petitioner does not dispute - that Petitioner never appealed the IJ's January 28th order denying bond. (ECF No. 41 at 5.)

         b. The Parties' Habeas Filings

         Petitioner initiated this § 2241 habeas action, pro se, in the United States District Court for the Southern District of New York (the “Southern District”) on August 7, 2018, approximately 46 days after Petitioner's present detention at ECCF began. (See ECF No. 2.) The Southern District transferred the matter to the District of New Jersey on October 11, 2018. (ECF No. 7.)

         Since that time, Petitioner has submitted a multitude of emergent motions, filings, and other applications, many of which have already been resolved by the Court. Those already-resolved filings include, inter alia, Petitioner's January 9, 2019 ex parte emergency motion seeking immediate release. (ECF No. 23.) The Court denied Petitioner's first emergency motion on January 15, 2019. (ECF No. 25.) At that time, the Court specifically found that Petitioner “failed to make ‘a clear and specific showing' [under the Local Rule governing applications for emergency relief in this District, Rule 65.1, ] of ‘good and sufficient reasons' why he [was] entitled to . . . immediate release from immigration custody.” (Id. at 6.) The Court also indicated that “[t]he merits of Petitioner's habeas claims [would] instead be resolved after the Government files its answer to the Petition.” (Id.)

         On January 28, 2019 - before the Government filed its answer - Petitioner filed his second emergency motion for immediate release (at ECF No. 30), as well as a separate motion seeking reconsideration of the Court's January 15th denial of his first emergency motion (at ECF No. 29). On January 30, 2019, the Court denied both motions. (ECF No. 31.) In so doing, the Court noted that Petitioner's claim that he is not subject to a ...

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