United States District Court, D. New Jersey
FREDI R. D. P., Petitioner,
RONALD P. EDWARDS, et al., Respondents.
Susan D. Wigenton, United States District Judge.
before the Court is the petition for a writ of habeas corpus
of Petitioner, Fredi R. D. P., filed pursuant to 28 U.S.C.
§ 2241 (ECF No. 1). Following an order to answer, the
Government has filed a response to Petitioner's petition
(ECF No. 4). Although represented by counsel, Petitioner did
not file a reply. For the following reasons, Petitioner's
habeas petition is denied without prejudice.
is a native and citizen of Guatemala who entered the United
States illegally at an unknown time and date without being
inspected or admitted. (Document 2 attached to ECF No. 4). In
April 2017, Petitioner was arrested by authorities in New
York and charged with unlawful sexual contact with a child
less than thirteen based off of two incidents in which he
“allegedly engaged in sexual contact with his
brother's stepdaughter, a four-year-old female, on more
than two occasions” in 2009. (Id. at 3).
Although the felony charges arising out of this incident were
dropped as part of a plea deal, Petitioner did plead guilty
to a disorderly conduct offense based on these events, and a
protective order was issued against him in favor of the
victim of the alleged assaults. (Id. at 4).
September 2018, Petitioner was issued a notice to appear and
was taken into immigration custody as he was an alien who had
entered the country illegally without inspection or
admission. (Document 1 attached to ECF No. 4). Petitioner was
placed into removal proceedings at that time. (Id.).
During the pendency of those proceedings, Petitioner first
received a bond hearing on December 14, 2018, before an
immigration judge pursuant to 8 U.S.C. § 1226(a), the
statute pursuant to which he is currently detained. (Document
2 attached to ECF No. 4 at 2). The immigration judge
ultimately denied Petitioner bond after finding that
Petitioner had failed to meet his burden of showing that he
was not a danger to the community based on the sexual contact
charges he had received in 2017. (Id. at 3-4).
Petitioner appealed, and the Board of Immigration Appeals
affirmed the denial of bond on May 21, 2019. (Document 6
attached to ECF No. 4). Petitioner thereafter filed a motion
for a redetermination of custody status in August 2019, but
that request was denied by an immigration judge on September
3, 2019, as the record still indicated that Petitioner was a
danger to the community and Petitioner had failed to meet his
burden of showing that his circumstances had materially
changed. (Document 7 attached to ECF No. 4). Petitioner
appealed that decision, and his appeal apparently remains
pending at this time. (Document 8 attached to ECF No. 4 at
April 10, 2019, Petitioner was granted relief from removal in
the form of cancellation of removal from the immigration
judge assigned to his removal proceedings. (Document 6
attached to ECF No. 4 at 3). Because the Government has
appealed that decision, and the appeal is currently pending
before the Board, however, Petitioner is not yet subject to a
final order of either removal or granting relief, and he
therefore remains detained pursuant to 8 U.S.C. §
1226(a) based on the record currently before the Court.
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 due process, 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).
petition, Petitioner contends that he filed a request for a
bond hearing in the summer of 2019, that he was not provided
with a bond hearing, and that his continued detention in the
absence of a bond hearing violates Due Process and his rights
pursuant to 8 U.S.C. § 1226(a). Section 1226(a)
“authorizes the Attorney General to arrest and detain
an alien ‘pending a decision on whether the alien is to
be removed from the United States.” Jennings v.
Rodriguez, --- U.S. ---, 138 S.Ct. 830, 847 (2018)
(quoting § 1226(a)). Under the statute, the Attorney
General “may release” the alien on bond or parole
provided the alien can make the requisite showing under the
applicable regulations. Id. Under those regulations,
an alien may only be released on bond where he meets his
burden of showing, to the satisfaction of an immigration
judge, that he “would not pose a danger to property or
persons” and that he is not a flight risk. 8 C.F.R.
§ 236.1(c)(8). In addition to an appeal of a bond
decision to the Board of Immigration Appeals, an alien who
was denied bond may also file a motion before the immigration
judge for a custody redetermination, but bond will only be
granted under those circumstances where the petitioner can
show that there has been a material change in circumstances.
8 C.F.R. § 1003.19(e).
an alien has received a bona fide bond hearing - that is, a
bond hearing providing him meaningful process under §
1226(a) and the applicable regulations and which is not
otherwise unconstitutional or unlawful - district courts have
no authority to grant the alien relief from his detention
under 8 U.S.C. § 1226(a). See Borbot v. Warden
Hudson Cnty. Corr. Facility, 906 F.3d 274, 277-80 (3d
Cir. 2018); see also 8 U.S.C. § 1226(e)
(“[n]o court may set aside any action or decision by
[immigration officials] under this section regarding the
detention or release of any alien or the grant, revocation,
or denial of bond or parole”); Pena v. Davies,
No. 15-7291, 2016 WL 74410, at *2 (D.N.J. January 5, 2016).
Thus, once an alien has received a bond hearing before an
immigration judge, this Court may neither review and set
aside the immigration judge's determination as to bond,
nor order a second bond hearing without proof of some
“constitutional defect” or other legal violation
that in some way rendered the bond hearing the petitioner
received less than bona fide. Borbot, 906 F.3d at
279; Pena, 2016 WL 74410 at *2-3; Harris v.
Herrey, No. 13-4365, 2013 WL 3884191, at *1 (D.N.J. July
Petitioner contends that he was denied a bond hearing in his
habeas petition, that assertion is patently untrue.
Petitioner has received a bond hearing, was denied bond as an
immigration judge found that he failed to meet his burden of
showing that he was not a danger to the community, appealed
that decision, and had his appeal dismissed by the Board of
Immigration Appeals. Petitioner has also sought and been
denied a custody redetermination as the immigration judge
found that he failed to meet his burden of showing a material
change in circumstances. Petitioner is not entitled to a new
bond hearing merely because of the passage of time or his
dissatisfaction with the outcome of his original proceedings.
Because Petitioner has not alleged, let alone shown, that the
bond hearing he received was anything less than bona fide,
this Court is without authority to reconsider the decision of
the immigration judge denying Petitioner bond. Petitioner has
thus not shown his entitlement to relief, and his habeas
petition is denied.