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Franklin K. B. v. Warden, Hudson County Correctional Facility

United States District Court, D. New Jersey

June 7, 2019

FRANKLIN K. B., Petitioner,




         Petitioner Franklin K. B.[1] (“Franklin”) has submitted a counseled petition for a writ of habeas corpus challenging his ongoing immigration detention since January 30, 2018 pursuant to 28 U.S.C. § 2241. (See, generally, Pet., DE 1.) For the reasons stated herein, the Court will grant his petition and order the immigration court to hold a bond hearing.


         Franklin is a native and citizen of Ghana who, in 2013, obtained permission to remain in the United States as a lawful permanent resident (“LPR”). (See Answer 2, DE 4.) Thereafter, on June 15, 2016, Franklin was criminally charged in New Jersey Superior Court with thirty-nine counts of forgery and theft. (See June 16, 2016 Indictment, available at ¶ 4-4.) On October 13, 2016, Franklin - as part of the plea agreement to resolve all such charges - pled guilty to one count of third-degree forgery, in violation of N.J.S.A. § 2C:21-1A(2). (See Dec. 22, 2016 Crim. J., available at ¶ 4-4.) On December 22, 2016, Franklin was sentenced to three years of probation and ordered to make criminal restitution payments totaling $25, 082.89. (Id.) On or about December 31, 2017, Franklin - after first obtaining permission from his probation officer - left the United States to visit his family in Ghana. (DE 1 at 4.)

         On or about January 29, 2018, Franklin returned to the United States on a flight which disembarked at John F. Kennedy International Airport (“JFK”). (See id.) It wholly appears that but-for Franklin's December 22, 2016 criminal conviction, he would have been admitted to the United States on January 29th as an LPR. But when Franklin disembarked from his flight at JFK, officials from the Department of Homeland Security (“DHS”) deemed him to be an “arriving alien” applying for admission to the United States. (See DE 4 at 3, 7-8 (citing 8 U.S.C. § 1182(a)(2)(A)(i)(I) (“any alien convicted of[:] a crime involving moral turpitude . . . is inadmissible”); 8 U.S.C. § 1101(a)(13)(C)(v) (“An alien [who has obtained LPR status] shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien[: . . .] has committed an offense identified in [§ 1182(a)(2), e.g., a crime of moral turpitude]”).) As a result of the foregoing, DHS referred Franklin's case to an immigration judge (“IJ”) for formal removal proceedings. (See DE 4 at 3.) On the following day, January 30, 2018, he was taken into custody by Immigration and Customs Enforcement (“ICE”). (Id.) Franklin has been detained at Hudson County Correctional Facility (“HCCF”) ever since.

         On April 3, 2018, DHS served Franklin with a notice informing him, among other things, that he was facing removal from the United States as an immigrant who, at the time he applied for admission on January 29, 2018, was an arriving alien convicted of a crime involving moral turpitude. (See DHS's Apr. 3, 2018 Notice to Appear, available at ¶ 4-3.) On May 14, 2018, Franklin appeared before an IJ and argued - through immigration counsel - that his forgery conviction was not a crime of moral turpitude. (DE 4 at 3.) The IJ reserved his decision on this claim at the May 14th hearing. (Id.) It would appear that had the IJ determined - at any point during the pendency of the present habeas matter - that Franklin's 2017 forgery conviction was not a qualifying “crime involving moral turpitude” under 8 U.S.C. § 1182(a)(2)(A)(i)(I), his present detention would not be governed by § 1225(b).

         That said, the record indicates that the IJ never made any such finding. Instead, the record clearly shows only that on August 30, 2018 - after two additional IJ-initiated hearing adjournments - an IJ, among other things, “concluded that [when Franklin applied for admission to the United States on January 30, 2018, he did so as] an arriving alien and [thus, that the immigration court] did not have jurisdiction to set a bond.” (See ICE Deportation Officer Bacchus' Sept. 20, 2018 Declar. ¶ 15, DE 4-1.) In other words, as of August 30, 2018, an IJ expressly determined that Franklin would not be released on bond during the pendency of his still-ongoing immigration proceedings.

         Franklin filed his habeas corpus petition on May 31, 2018 (hereinafter, the “§ 2241 Petition”). (DE 1.) Respondent (hereinafter the “Government”) answered the § 2241 Petition on September 21, 2018. (DE 4.) Franklin's petition and the Government's answer remain the only documents submitted by either party in this matter. As such, the last update from any party on the status of Petitioner's ongoing immigration proceedings was provided on September 21, 2018, via the Government's answer. It is nonetheless undisputed that Franklin has been continuously detained at HCCF since January 30, 2018.

         III. ANALYSIS

         A. Legal Standard

         Habeas relief may be extended to an immigration detainee who “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); see also Maleng v. Cook, 490 U.S. 488, 490 (1989). The Court has jurisdiction in this habeas matter because Franklin is currently detained within this Court's jurisdiction by a custodian within its jurisdiction and claims, by way of his § 2241 Petition, that his continued detention is unconstitutional. See 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).

         B. The Parties' Arguments

         Franklin specifically contends that his current detention violates his right to due process. (See, generally, DE 1.) Franklin also expressly requests that the Court order a bond hearing in which DHS bears the burden of demonstrating that his continued detention is appropriate. (Id. at 6.) The Government, on the other hand, argues that Franklin's § 2241 Petition should be denied because “his continued detention pursuant to [8 U.S.C. §] 1225(b) is lawful.” (DE 4 at 9.) In other words, the Government claims that Franklin's “mandatory detention without a ...

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