United States District Court, D. New Jersey
McNULTY UNITED STATES DISTRICT JUDGE.
Reinis G.,  is an immigration detainee, held at the
Elizabeth Detention Facility, in Elizabeth, 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 insofar as petitioner
will be granted a bond hearing.
a native and citizen of Latvia, entered the United States as
a lawful permanent resident in October 2000. In February
2011, petitioner pleaded guilty to distributing, dispensing,
or possessing a controlled dangerous substance in a school
zone under New Jersey Statutes Annotated
("N.J.S.A.") § 2C:35-7, and he was sentenced
to two years of probation. On June 9, 2017, the Department of
Homeland Security, Immigration and Customs Enforcement,
("ICE") arrested petitioner, and he has remained in
immigration custody since that time.
was charged as being deportable on two bases: (a) under 8
U.S.C. § 1227(a)(2)(A)(iii), for having committed an
aggravated felony, and (b) under § 1227(a)(2)(B)(i), for
having committed a controlled-substances offense.
Consequently, he was detained under 8 U.S.C. § 1226(c).
Petitioner explains that he sought to pursue cancellation of
removal, relief which a prior conviction for an aggravated
felony would typically bar. He alleges that the presiding
immigration judge initially seemed receptive, but ultimately
determined that his prior conviction constituted an
aggravated felony. On June 7, 2018, the immigration judge
ordered petitioner's removal, and petitioner's appeal
of this decision is, apparently, still pending before the
Board of Immigration Appeals. That administrative appeal, and
potentially a further appeal to the Court of Appeals, would
be the procedure for correction of any legal error as to the
petitioner's deportable status.
has now filed this petition for writ of habeas corpus. (DE
1.) He makes two primary arguments as to why his detention is
improper, or improperly prolonged. First, he contends that he
cannot be detained under § 1226(c) as it requires ICE to
take persons into custody immediately when they are released
from criminal custody, whereas he was never criminally
incarcerated. (Id. at 6-7.) Petitioner also alleges
that he cannot be detained under § 1226(c) because,
pursuant to Third Circuit precedent, his conviction is not an
aggravated felony under immigration law. (Id. at 7.)
Petitioner also alleges that his detention without a bond
hearing under § 1226(c) has become unduly prolonged.
ordered the government to file an answer in response to the
petition. (DE 2.) I also ordered the government to notify the
Court within seven days of petitioner's release from
custody, "as well as any change in the basis for
petitioner's immigration detention." (Id.)
government filed an answer opposing the petition on behalf of
respondent Orlando Rodriguez, the warden of the Elizabeth
Detention Facility. (DE 4.) It argues that mandatory
detention under § 1226(c) has been upheld by the Supreme
Court and that as-applied challenges to that section are
appropriate only in extraordinary cases of prolonged
detention. (See Id. at 5-20.) It includes no
response to petitioner's arguments that he is not
properly detained under § 1226(c) in the first place.
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.
Figiieroa, 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.
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. That subsection reads as follows:
The Attorney General shall take into custody any ...