United States District Court, D. New Jersey
MICHAEL VAZQUEZ UNITED STATES DISTRICT JUDGE.
before the Court is Petitioner's § 2241 habeas
corpus petition challenging his ongoing immigration detention
since March 2015 (the “§ 2241 Petition”).
(DE 1.) By way of that pleading, Petitioner requests that
this Court “order [that he] have a constitutionally
adequate bond hearing.” (Id. at 3.) For the
reasons stated herein, the petition is granted.
is a native and citizen of Trinidad and Tobago.
(See, e.g., DE 6-1 at Ex. A.) He arrived in
the United States on July 7, 1996 as a lawful permanent
resident. (Id.) On July 29, 2010, Petitioner began
serving a six-year incarcerative sentence as a result of his
February 5, 2010 conviction in a New York criminal court for
third-degree robbery. (See Id. at Ex. B, PageID: 80.)
At the completion of that sentence, on or about March 20,
2015, Petitioner was taken into custody by the United States
Department of Homeland Security (“DHS”).
(Id. at Ex. D, ¶ 17.) Petitioner has been
detained by immigration authorities ever since. At the
outset, it bears noting that Petitioner has, at all times
throughout this period, been held pursuant to 8 U.S.C. §
1226(c); this is due to his criminal history and in light of
the fact that he has never been subject to a
“final” order of removal. See Leslie v.
Att'y Gen., 678 F.3d 265, 268-270 (3d Cir. 2012).
22, 2016, Immigration Judge (“IJ”) Margaret M.
Kolbe ordered Petitioner removed to Trinidad and Tobago and
denied his related application for relief under the
Convention Against Torture (“CAT”). (DE 6-1 at
Ex. H.) On July 19, 2016, Petitioner appealed that decision
to the Board of Immigration Appeals (the “BIA”).
(See Id. at Ex. I.) On November 2, 2016, the BIA
dismissed his appeal. (Id.) On November 30, 2016,
Petitioner filed a Petition for Review (“PFR”) in
the United States Court of Appeals for the Second Circuit
challenging the foregoing decisions. (See DE 6 at 7;
accord DE 10 at Ex. A.) On July 20, 2017, the Second
Circuit stayed Petitioner's removal during the pendency
of his PFR. (See DE 6 at 6.) On January 8, 2019, the
Second Circuit vacated the BIA's November 2, 2016
decision and remanded Petitioner's immigration matter
based on certain deficiencies in the IJ's and the
BIA's resolution of his CAT claim. (DE 10 at Ex. A.) It
is unclear what additional steps have since been taken by the
BIA and/or the immigration court in response to the Second
the pendency of Petitioner's now 52-plus months of
detention under § 1226(c), the immigration courts have
denied all of his applications to be released on bond.
Respondent (hereinafter, “the Government”) avers
- through the Declaration of Paralegal Specialist Elizabeth
Burgess - that the first of Petitioner's bond hearings
before an IJ was held on March 31, 2015, at which time
“the [IJ] took no action on [Petitioner's] request
for bond.” (DE 6-1, Ex. D at ¶ 18.) The
documentary evidence in the record reflects that IJ Terry A.
Bain - after holding a bond hearing on November 17, 2015
(see id., Ex. F at 2) - formally denied
Petitioner's application to be released on bond on
December 22, 2015. (Id. at Ex. F, 4.) The BIA
affirmed IJ Bain's bond denial on March 8, 2016.
(Id. at Ex. G.) On August 24, 2017, IJ Donald
Thompson similarly denied Petitioner's request for a new
bond hearing. (Id. at Ex. K.) The BIA, on January
24, 2018, likewise affirmed IJ Thompson's bond decision.
(Id. at Ex. L.) The Government further avers -
without any documentary support - that “[o]n October
31, 2018, Petitioner appeared for [another] bond hearing
before [an IJ], and the [IJ] took no action on
Petitioner's request for release under bond.” (DE 6
at 8 (citing Burgus Declar. ¶ 36, DE 6-1 at Ex. D).) The
record further indicates that Immigration and Customs
Enforcement (“ICE”) issued its third, most recent
“Decision to Continue [Petitioner's]
Detention” on or about September 17, 2018. (DE 6-1 at
filed his § 2241 Petition on or about August 24, 2018.
(DE 1.) The Government filed its answer to the same on
November 8, 2018. (DE 6.) Petitioner replied on December 6,
2018 (DE 7), and the Government filed a sur-reply in response
on December 21, 2018. (DE 8.) On January 28, 2019, Petitioner
requested that the Court postpone its habeas decision
“due to new evidence.” (DE 9.) Shortly
thereafter, on February 27, 2019, Petitioner filed an amended
habeas pleading attaching, among other things, the Second
Circuit's January 8, 2019 remand decision. (DE 10.) The
Government filed its response to the same on March 6, 2019.
28 U.S.C. § 2241(c), 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.” Id. at § 2241(c)(3). As noted,
Petitioner has, for the last 52-plus months, been subject to
mandatory detention pursuant to 8 U.S.C. §
1226(c). At issue here is whether Petitioner's
four-plus years of immigration detention has become
unreasonably prolonged as to render that detention
Supreme Court first considered the constitutionality of
prolonged detention pursuant to § 1226(c) in Demore
v. Kim, 538 U.S. 510 (2003). The Demore Court
determined that the statute was facially constitutional as
“[d]etention during removal proceedings is a
constitutionally permissible part of that process.”
Id. at 531. In reaching this conclusion, the Supreme
Court noted that in most cases detention under the statute
lasted only a month and a half and that even in cases where
an appeal was taken to the BIA, detention pursuant to §
1226(c) lasted an average of four months, indicating that
detention under the statute was often brief and had a defined
beginning and end point at the conclusion of removal
proceedings. Id. at 529. Because the Demore
Court found the statute constitutional, it rejected the
petitioner's challenge even though he had spent a period
of approximately six months in detention. Id. at
530. Thus, after Demore it was clear that detention
for less than six months was insufficient to support an
as-applied challenge to detention under the statute.
Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir.
2011), the Third Circuit considered whether a petitioner was
entitled to a bond hearing nearly three years into his
detention under § 1226(c). Id. at 223-26. The
Third Circuit held that he was, notwithstanding that
provision's lack of any such requirement. “[W]hen
detention becomes unreasonable, ” the court reasoned,
“the Due Process Clause demands a hearing, at which the
Government bears the burden of proving that continued
detention is necessary to fulfill the purposes of the
detention statute.” Id. at 233. The Third
Circuit noted that Demore emphasized that
“mandatory detention pursuant to § 1226(c) lasts
only for a ‘very limited time' in the vast majority
of cases, ” and concluded that the result in
Demore “may well have been different” if
the petitioner's detention had been “significantly
longer than the average.” Diop, 656 F.3d at
233-34 (quoting Demore, 538 U.S. at 529 & n.12).
The Third Circuit thus interpreted § 1226(c) to
“contain an implicit limitation of reasonableness:
the statute authorizes only mandatory detention that is
reasonable in length.” Id. at 235. Beyond that
point - which can be determined only by a
“fact-dependent inquiry, ” id. at 233 -
the statute “yields to the constitutional requirement
that there be a further, individualized, inquiry into whether
continued detention is necessary to carry out the
statute's purpose, ” id. at 235. The
circuit court's interpretation of § 1226(c) relied
in part on Zadvydas v. Davis, 533 U.S. 678 (2001),
in which the Supreme Court “read an implicit limitation
into” 8 U.S.C. § 1231(a)(6) - which governs
detention of aliens who have already been ordered removed -
so that it “d[id] not permit indefinite
detention.” Id. at 689.
Third Circuit again applied Diop's
reasonableness requirement in Chavez-Alvarez v. Warden
York Cty. Prison, 783 F.3d 469 (3d Cir. 2015). There,
the circuit court held that because the petitioner's
year-long detention under § 1226(c) had become
unreasonable, he was entitled to a bond hearing where the
government would bear the burden of “produc[ing]
individualized evidence that Chavez-Alvarez's continued
detention was or is necessary.”
Chavez-Alvarez, 783 F.3d at 474, 478. As in
Diop, that conclusion resulted from the Third
Circuit's “use of a balancing framework [that]
makes any determination on reasonableness highly
fact-specific.” Id. at 474.
Supreme Court's decision in Jennings v.
Rodriguez, 138 S.Ct. 830 (2018), however, overruled
Diop's statutory interpretation of 8 U.S.C.
§ 1226(c). Jennings rejected the conclusion
that § 1226(c) contains an implicit reasonableness
limitation. Id. at 846-47. The Supreme Court noted
that in Demore, it distinguished § 1226(c) from
§ 1231(a)(6) (the statute at issue in
Zadvydas). See Id. at 846. While detention
under § 1231(a)(6) lacks a “definite termination
point, ” § 1226(c) authorizes detention only until
the conclusion of removal proceedings. Id. (quoting
Demore, 538 U.S. at 529). Jennings holds
that “§ 1226(c) mandates detention of any alien
falling within its scope and that detention may end prior to
the conclusion of removal proceedings only if the alien is
released for witness-protection purposes.” Id.
at 847 (internal quotation marks omitted). Jennings,
however, did not address the constitutionality of §
1226(c); the Supreme Court instead remanded to the Ninth
Circuit to decide that question in the first instance.