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Malcolm A. H. v. Green

United States District Court, D. New Jersey

August 7, 2019

MALCOLM A. H., Jr., Petitioner,
v.
CHARLES GREEN, Respondent.

          OPINION

          JOHN MICHAEL VAZQUEZ UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Presently before the Court is Petitioner's pro se § 2241 habeas corpus petition challenging his ongoing immigration detention beginning in June of 2018. (the “§ 2241 Petition”). (DE 1.) By way of that pleading, Petitioner requests that this Court “order [that he receive] a constitutionally adequate, individualized hearing before an impartial adjudicator at which the Government bears the burden of establishing that Petitioner's continued detention is justified.” (Id. at 12.) For the reasons stated herein, the petition is granted.

         II. BACKGROUND

         Petitioner is a native and citizen of Trinidad and Tobago. (See, e.g., DE 4-2.) He arrived in the United States on July 18, 1980, as a visitor, and thereafter became a lawful permanent resident on March 24, 1988. (Id.) On November 14, 2014, Petitioner began serving a ten-year sentence, which included a 42-month period of parole ineligibility, after being convicted in New Jersey Superior Court of manufacturing, distributing, or dispensing a controlled dangerous substance (“CDS”), in violation of N.J.S.A. § 2C:35-5A(1). (See DE 4-3 at PageID: 41.) Thereafter, on or about June 4, 2018, [1] Petitioner was taken into custody by Immigration and Customs (“ICE”). (See DE 4-4.) He has been detained by immigration authorities ever since. Petitioner has, at all times throughout this period, been held pursuant to 8 U.S.C. § 1226(c);[2] 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). The record reflects that Petitioner's lone request to the immigration court for a custody redetermination on the mandatory nature of his detention, e.g., that he is in fact eligible to be released on bond, was denied by Immigration Judge (“IJ”) Mirlande Tadal on August 24, 2018. (DE 4-5.)

         On January 22, 2019, IJ Leo A. Finston ordered Petitioner removed to Trinidad and Tobago and denied his related application for relief under the Convention Against Torture (“CAT”). (DE 4-6.) On February 11, 2019, Petitioner appealed the IJ's decision to the Board of Immigration Appeals (the “BIA”). (See DE 4-7.) The BIA dismissed that appeal on June 20, 2019. (See, e.g., Admin. R., Malcolm A. H., Jr. v. Att'y Gen., No. 19-2556 (3d Cir. July 25, 2019).) On July 5, 2019, Petitioner filed a Petition for Review (“PFR”) in the United States Court of Appeals for the Third Circuit. (See PFR, Malcolm A. H., Jr, No. 19-2556 (3d Cir. July 5, 2019).) On July 5, 2019, the Third Circuit entered an order temporarily staying Petitioner's removal. (See Order, Malcolm A. H., Jr, No. 19-2556 (3d Cir. July 5, 2019).) The Third Circuit's temporary stay, as of today's date, remains in effect.

         Petitioner filed his § 2241 Petition on or about December 31, 2018. (DE 1.) He asks this Court to order “a constitutionally adequate, individualized [bond] hearing before an impartial adjudicator at which the Government bears the burden of establishing that Petitioner's continued detention is justified.” (Id. at 12.) The Government, by way of its March 4, 2019 response, avers that “Petitioner is not entitled to a bond hearing because section 1226(c) mandates that detention must continue until the completion of [immigration] proceedings.” (DE 4 at 4.) Petitioner filed his reply on or about March 14, 2019. (DE 5.)

         III. ANALYSIS

         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). As noted, Petitioner has, since June 4, 2018, been subject to mandatory detention pursuant to 8 U.S.C. § 1226(c). At issue here is whether Petitioner's 14-plus month period of immigration detention has now become so unreasonably prolonged as to render Petitioner's detention unconstitutional.

         The 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.

         In 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.

         The Third Circuit again applied the Diop 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.

         The 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. Id. at 851. Jennings therefore, says the Third Circuit, “[does] not call into question [its] constitutional holding in Diop that detention under § 1226(c) may violate due process if unreasonably long.” Borbot v. Warden Hudson Cty. Corr. Facility, 906 F.3d 274, 277-78 (3d Cir. 2018).

         In sum, the constitutional holdings of Diop and Chavez-Alvarez call for a “fact-dependent inquiry requiring an assessment of all of the circumstances of any given case, ” to determine whether detention without an individualized hearing is unreasonable. Diop, 656 F.3d at 234; see also Chavez-Alvarez, 783 F.3d at 475 n. 7 (explaining “the highly fact-specific nature” of the balancing framework). Under this approach, district courts must determine whether an individual's detention has crossed the “reasonableness” threshold, thus entitling him or her to a bail hearing. Again, the reasonableness of detention depends on the facts of the detainee's individual case. See Diop, 656 F.3d at 232-33 (noting that the inquiry into whether detention has become unreasonable “will necessarily be a fact-dependent inquiry that will vary depending on individual circumstances” and “declin[ing] to establish a universal point at which detention will always be considered unreasonable”). At the point the detention becomes unreasonable under the facts of the case, there must be a bond 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. In that respect, the Third Circuit held in Chavez-Alvarez that, in the absence of bad faith by the criminal alien, [3] his or her detention without a bond hearing may often ...


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