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Ricardo A. C.-R. v. Ahrendt

United States District Court, D. New Jersey

May 9, 2019

RICARDO A. C.-R., Petitioner,




         Petitioner has submitted a counseled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his prolonged immigration detention. (DE 1.) For the reasons stated herein, the petition is denied without prejudice.


         Petitioner is a native and citizen of El Salvador who entered the United States on or about February 25, 2012. (See DE 14-1.) On February 26, 2012, the U.S. Department of Homeland Security (“DHS”) notified Petitioner that he was subject to removal as an alien who entered this country without authorization, and that this charge would be resolved via removal proceedings in immigration court. (Id.) Petitioner has remained in the United States since 2012. He subsequently relocated to New York and is now father to an American-born son. (See, e.g., DE 1-3.)

         On April 20, 2018 - while his charge of removability remained pending and otherwise unresolved in immigration court - Petitioner was arrested in Roosevelt, New York in connection with a domestic dispute. (DE 14-2.) The April 21, 2018 misdemeanor complaint that followed indicates that on April 20th, “[Petitioner] did cause an injury or substantial pain to [his son's mother] by punching victims [sic] face and intentionally broke victims [sic] cell phone . . . [Petitioner] also held an 8 inch knife to the victim while next to [their] 5 month old son, putting the victim in fear for her life and that of [their] son.” (DE 14-3.) On May 2, 2018, Petitioner pled guilty to a disorderly conduct charge in Nassau County District Court and was sentenced to 15 days imprisonment. (DE 14-2.) On May 3, 2018, Immigration and Customs Enforcement (“ICE”) detained Petitioner (see DE 14-4); he has been held at Bergen County Jail in Hackensack, New Jersey since that time. (See, e.g., DE 1.)

         On August 8, 2018, Petitioner appeared before Immigration Judge (“IJ”) Thomas Mulligan in New York City for a bond hearing. At that hearing, IJ Mulligan denied Petitioner's request to be released on bond. (See DE 14-5.) On September 26, 2018, the IJ issued a formal written decision setting forth the basis of that ruling, i.e., that Petitioner failed to demonstrate that he was not a danger to the community. (Id.) On January 4, 2019, the Board of Immigration Appeals (“BIA”) affirmed IJ Mulligan's bond denial. (DE 14-6.) On January 8, 2019, IJ Mulligan held a merits hearing at which he considered - and denied - all of Petitioner's removal-related applications and ordered his removal to El Salvador. (See DE 14-7.) Petitioner's appeal of IJ Mulligan's January 8th decision is now pending before the BIA. (See DE 14 at 4.)

         A. The Parties' Habeas Filings

         Petitioner initiated the present habeas action on November 30, 2018. (DE 1.) Petitioner's request for habeas relief is rooted solely in the purported impropriety of IJ Mulligan's decision denying Petitioner's release on bond. (See, generally, id.) In that respect, Petitioner claims that IJ Mulligan “erroneously shifted the burden [of proof at that hearing] from DHS to [Petitioner]” because the IJ “required [Petitioner] to establish that he was not a risk to the community.” (DE 1 at 15.) He also claims that IJ Mulligan impermissibly relied on inadmissible hearsay statements and other unreliable information contained in the April 20, 2018 police report of the officers who arrested Petitioner and in Petitioner's April 21, 2018 charging document. (DE 1 at 8, 16.) He further avers that the IJ improperly disregarded the June 14, 2018 statement of Petitioner's alleged victim (id. at 9); that statement undermines the veracity of certain unsavory facts detailed in the April 20th police report and April 21st complaint. (See DE 1-3.) Petitioner likewise claims that IJ Mulligan incorrectly found that Petitioner failed to submit any documents evidencing his remorse and rehabilitation (see DE 1 at 9) because Petitioner provided the immigration court with evidence of his admission to a 26-week rehabilitation program for batterers. (See DE 1-4.) Petitioner similarly claims that IJ Mulligan failed to consider other evidence submitted by Petitioner in support of his bond application - including affidavits, tax returns, family photographs, and other documents - demonstrating Petitioner's significant family ties to the United States, lack of criminal and immigration infractions, good character, and stable employment. (DE 1 at 9, 16; see also DE 1-5.) Petitioner claims that as a result of the foregoing, he was denied his “constitutional right to a fair and impartial bond hearing.” (DE 1 at 15.) Petitioner requests that this Court order his release from immigration custody, or, in the alternative, order another bond hearing before an IJ. (See Id. at 20.)

         Respondent (the “Government”) filed its answer to Petitioner's § 2241 petition on February 15, 2019. (DE 14.) The Government correctly notes that Petitioner, by way of his habeas petition, singularly “challenges the immigration judge's August 8, 2018 denial of his release at his custody redetermination hearing.”[1] (Id. at 5.) The Government argues that because Petitioner - as an individual detained under § 1226(a)[2] - already received a bona fide, lawfully-conducted bond hearing, there is no additional relief available to him from this Court in this habeas proceeding.


         Under 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 constitutional rights, 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).

         IV. ANALYSIS

         The Attorney General has the authority to detain aliens in removal proceedings before the issuance of a final order of removal, e.g., during the “pre-removal” period. Detention of an alien before entry of a final removal order is governed by Section 1226 of Title 8 of the United States Code. Section 1226(a) authorizes the Attorney General to detain or release an alien pending a ...

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