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Glennis H. v. Rodriguez

United States District Court, D. New Jersey

July 2, 2019

GLENNIS H., Petitioner,
ORLANDO RODRIGUEZ et al., Respondents.


          KEVIN MCNULTY. U.S.D.J.


         The petitioner. Glennis H., [1] is an immigration detainee, presently 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 insofar as respondents will be ordered to provide petitioner a bond hearing.


         Petitioner, a native and citizen of Antigua and Barbuda, entered the United States as a lawful permanent resident in April 2001. In April 2014, petitioner pleaded guilty to possession of marijuana with intent to distribute or dispense, under New Jersey Statutes Annotated § 2C:35-5(a) and (b)(l 1). Petitioner was sentenced to one year of probation.

         On September 25, 2017, the Department of Homeland Security, Immigration and Customs Enforcement, ("ICE") arrested petitioner and initiated removal proceedings against him. Petitioner was detained under 8 U.S.C, § 1226(c) and has remained in immigration custody since that time. Petitioner explains that, on February 6, 2018, an immigration judge ordered him removed. The Board of Immigration Appeals ("BIA") dismissed an appeal from this order on July 31, 2018. Petitioner sought review from the United States Court of Appeals of the Third Circuit, which, on October 29, 2018, granted a request for a stay of removal. The proceeding before the Third Circuit remains pending.

         Petitioner thereafter filed this petition for writ of habeas corpus, seeking release or an individualized bond hearing to justify his continued detention. (DE 1.) Petitioner does not dispute the initial basis for detention, but he asserts that his detention has been unduly prolonged to the point of having become unconstitutional under Diop v. ICE/Homeland Sec, 656 F.3d 221 (3d Cir. 2011), and Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir. 2015), among other cases. (See DE 1.) He also alleges that purported retaliation for his challenges to removal has rendered his detention unduly punitive in violation of the Due Process Clause. (Id.) Petitioner has additionally argued that the basis for his detention changed § 1226(c) to § 1226(a) when the Third Circuit stayed his removal, and that under the latter provision, a bond hearing is required. (Id.)

         I ordered the government to file an answer to the petition. (DE 8.) 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.) The matter is now fully briefed.

         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 the 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. 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 which detention under § 1226(c) crosses the permissible line, but announced a rule of thumb that detention would become constitutionally suspect at some point between 6 and 12 months.[2] See Chavez-Alvarez, 783 F.3d at 473-78.

         In Jennings, however, the Supreme Court abrogated the direct holdings of Diop and Chavez-Alvarez, as a matter of statutory interpretation. Specifically, Jennings held that § 1226(c) does not require bond hearings to justify ongoing detention and that the canon of constitutional avoidance may not be employed to read such a requirement into the statute. Id. at 842, 846-47. The government acknowledges, however, that the Jennings Court did not directly analyze the constitutionality of particular detentions under § 1226(c).

         Putting these holdings together, I agree with Judge Wigenton that one challenge to a § 1226(c) detention still remains available: "an individualized as applied constitutional challenge to the statute." Diyden v. Green, 321 F.Supp.3d 496, 501-02 (D.N.J. 2018) (citing Jennings, 138 S.Ct. at 851-52). To put it another way, for a petitioner in this situation, "Jennings leaves open only the question of whether § 1226(c) is unconstitutional as applied to the petitioner."[3] Id. at 502. Indeed, respondents concede that a person detained under § 1226(c) may, in the right circumstances, bring an as-applied challenge to the constitutionality of ongoing detention.

         The post-Jennings as-applied analysis, as it turns out, is very similar, and perhaps identical, to the former analysis under Diop. Whether detention under § 1226(c) is constitutional continues to be "a function of the length of the detention," whereby "the constitutional case for continued detention without inquiry into its necessity becomes more and more suspect as detention continues." Diop, 656 F.3d at 232, 234; see also Chavez-Alvarez, 783 F.3d at 474-75. Thus, at some point, detention under ยง 1226(c), in an individual case, may become "so unreasonable as to amount to an arbitrary deprivation of liberty" ...

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