Njeri v. Lynch et al

Filing 4

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 4/7/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH M. NJERI,
Petitioner,
vs.
LORETTA LYNCH,
JEFF CHARLES JOHNSON,
RICARDO A. WONG,
MICHAEL LANDMEIER, and
WARDEN OF PULASKI IMMIGRATION DETENTION FACILITY,
Respondents.

Case No. 16-cv-369-DRH
MEMORANDUM AND ORDER

HERNDON, District Judge:
Petitioner Joseph Njeri, a citizen of Kenya, is currently detained at the
Pulaski Immigration Detention Center in Ullin, Illinois. On April 1, 2016, he filed
the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc.
1), in order to challenge his continuous detention by Immigration and Customs
Enforcement (“ICE”) officials since June 19, 2014. (Doc. 1, p. 3). Njeri contends
that he is not subject to mandatory detention under 8 U.S.C. § 1226(c), and his
continued detention without a bond hearing violates the plain language of 8 U.S.C.
§ 1226 and his right to due process under the law. (Doc. 1, pp. 7-12). He seeks a
preliminary injunction enjoining respondents from further unlawfully detaining
him and a fair bond hearing. Id. at 13.
This matter is now before the Court for a preliminary review of the petition
pursuant to Rule 4 of the Rules Governing § 2254 Cases in United States District
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Courts. Rule 4 provides that upon preliminary consideration by the district court
judge, “[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.” After carefully reviewing the
petition (Doc. 1), the Court concludes that the petition warrants expedited review.
Habeas Petition
Njeri, a native and citizen of Kenya, entered the United States on or about
January 14, 2006 on an F-1 student visa. (Doc. 1, p. 3). In 2010, he married a
United States citizen, who later gave birth to his daughter. Id. at 15.
Njeri states the he was “convicted of two D.U.I.’s in Indiana, one of them in
2010 and the other in 2012, and one offense in Wabash county which was a
mischief with food a class B misdemeanor.” Id. at 7. On at least one of the DUI’s,
Njeri pled guilty and was sentenced to a year confinement, which the court
suspended for all but six days of his confinement. Id. at 24.
On June 19, 2014, a year after completing his sentence and all of the
community rehabilitative programs he was required to do, Immigration and
Customs Enforcement officials picked him up at his home and detained him
pursuant to 8 U.S.C. § 1226(c) pending removal proceedings. Id. at 6.
On June 18, 2015, an immigration judge ordered that Njeri be removed to
Kenya. Id. at 5. Njeir appealed the removal order to the Board of Immigration
Appeals (“BIA”) on July 13, 2015. Id. BIA dismissed Njeri’s appeal on November
5, 2015. Id. Njeri filed a timely appeal a few weeks later with the Seventh Circuit

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Court of Appeals. Id. A review of the Public Access to Court Electronic Records
(“PACER”) website (www.pacer.gov) 1 indicates that the Seventh Circuit has stayed
the order of removal, denied respondent’s motion to remand, and ordered
briefing on Njeri’s appeal. See Njeri v. Lynch, Case No. 15-3623 (7th Cir. filed
November 23, 2015).
In the present petition, Njeri argues that he is not subject to mandatory
detention during his pending removal proceedings under 8 U.S.C. § 1226(c). 2 He
claims that § 1226(c) requires the government to take an alien into immigration
custody “when the alien is released” from criminal custody, and this means
“immediately upon release,” not a year later, as in his case. (Doc. 1, pp. 7-12). In
addition, Njeri asserts that his indefinite detention without a bond hearing
violates his substantive and procedural due process rights. Id. at 12. He seeks a
preliminary injunction enjoining respondent from further unlawfully detaining
him and a fair bond hearing. Id. at 13.
Discussion
Dismissal of the petition is not appropriate at this time. The district court
has

subject

matter

jurisdiction

over

habeas

petitions

challenging

the

constitutionality of § 1226(c). See Gonzalez v. O’Connell, 355 F.3d 1010, 1015

A court may take judicial notice of public records available on government websites. See
Bova v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 930 n.2 (S.D. Ill. 2006) (collecting cases).

1

2

Section 1226(c) requires the Attorney General to take into custody aliens the
Government has charged as being removable because they have been convicted of certain
crimes or are reasonably suspected of terrorism. See 8 U.S.C. § 1226(c)(1). Aliens who
fall into these categories are ineligible for an individualized bond hearing, where they may
establish that they are not dangerous or a flight risk, unless their release is necessary for
cooperation in a criminal investigation. 8 U.S.C. § 1226(c)(2).
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(7th Cir. 2004). The Seventh Circuit has not yet considered, as far as this Court
is aware, whether a temporal gap in custody would act as a bar to § 1226(c)’s
mandatory detention provision.

But even assuming, without deciding, that

mandatory detention was initially proper, Njeri has now been detained for nearly
two years. This type of prolonged detention without a bond hearing raises serious
concerns.

See e.g., Lora v. Shanahan, 804 F.3d 601, 614 (2d Cir. 2015)

(“Accordingly, we join every other circuit that has considered this issue, as well as
the government, in concluding that in order to avoid serious constitutional
concerns, section 1226(c) must be read as including an implicit temporal
limitation.”)
Given the challenges to § 1226(c) and the due process concerns raised in
the petition, the length of Njeri’s detention thus far, and his request for a
preliminary injunction, the Court finds that an expedited review of this matter is
warranted. As such, the Court orders expedited briefing in accordance with the
schedule set forth in the disposition section below.

Once the parties have

completed briefing on the issues, the Court will set a hearing on this matter as
soon as practicable.
With that said, Njeri has named several respondents who are not proper.
In Kholyavskiy v. Achim, 443 F.3d 946, 952-53 (7th Cir. 2006), the
Seventh Circuit held that an immigration detainee raising substantive and
procedural due process challenges to his “confinement awaiting removal” could
only name the person who has immediate custody of him during his detention,

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and not high-level ICE officials or the Attorney General.

Id.

Accordingly, all

respondents other than the Warden of the Pulaski Immigration Detention Facility
will be dismissed from this case.
Disposition
IT IS HEREBY ORDERED that the petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 shall receive further review.
IT IS FURTHER ORDERED that Loretta Lynch, Jeff Charles Johnson,
Ricardo Wong, and Michael Landmeier are hereby DISMISSED from this action.
IT IS FURTHER ORDERED that the Warden of the Pulaski Immigration
Detention Facility shall answer the petition within fourteen (14) days of the date
this Order is entered; Njeri shall file a response to the answer within fourteen (14)
days after the answer is filed; and the Warden shall file a reply to Njeri’s response
no later than seven (7) days thereafter. 3 This order to respond does not preclude
the respondent from making whatever waiver, exhaustion, or timeliness
arguments it may wish to present to the Court. Service upon the Warden, Pulaski
Immigration Detention Facility, 1026 Shawnee College Road, Ullin, Illinois, 62992
shall constitute sufficient service.
Out of an abundance of caution and pursuant to Federal Rule of Civil
Procedure 4(i), the Clerk is DIRECTED to send a copy of the petition and this
Order to the United States Attorney for this District, and to send a copy of the
petition and Order via registered or certified mail to the United States Attorney
3

The response date ordered herein is controlling. Any date that CM/ECF should generate
in the court of this litigation is a guideline only.
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General in Washington, D.C., to the United States Department of Homeland
Security, and to the United States Immigration and Customs Enforcement.
IT IS FURTHER ORDERED that, pursuant to Local Rule 72.1(a)(2), this
cause is REFERRED to Magistrate Judge Clifford J. Proud for further pre-trial
proceedings.
IT IS FURTHER ORDERED that this entire matter is REFERRED to
Magistrate Judge Clifford J. Proud for disposition, as contemplated by Local Rule
72.2(b)(2) and 28 U.S.C. § 636(c), should all parties consent to such a referral.
Petitioner is ADVISED of his continuing obligations to keep the Clerk
(and respondent) informed of any change in his whereabouts during this action.
This notification shall be done in writing and not later than seven days after a
transfer or other change in address occurs. Failure to provide such notice may
result in dismissal of this action. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.

Digitally signed by
Judge David R. Herndon
Date: 2016.04.07
09:55:19 -05'00'

DATED: April 7, 2016

United States District Court

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