MAYNARD v. HENDRIX
Filing
13
OPINION. Signed by Judge William J. Martini on 12/12/11. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
IAN T. MAYNARD,
:
Civil Action No. 11-0605 (WJM)
Petitioner,
:
v.
:
ROY L. HENDRIX,
OPINION
:
Respondent.
:
APPEARANCES:
Petitioner pro se
Ian T. Maynard
Essex County Correctional Fac.
354 Doremus Avenue
Newark, NJ 07105
Counsel for Respondent
Jordan Milowe Anger
Assistant U.S. Attorney
970 Broad Street, 7th Floor
Newark, NJ 07102
MARTINI, District Judge
Petitioner Ian T. Maynard, an alien detainee, has submitted
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241,1 challenging his prolonged detention in connection with
removal proceedings.
1
Section 2241 provides in relevant part:
(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective
jurisdictions.
(c) The writ of habeas corpus shall not extend to a
prisoner unless-- ... (3) He is in custody in violation
of the Constitution or laws or treaties of the United
States ... .
The sole respondent is Roy L. Hendrix, warden of Essex
County Correctional Facility in Newark, New Jersey.
This matter is presently before the Court pursuant to
Respondent’s submission of a Motion [9] to Dismiss and an Answer
requesting, in the alternative, that the Petition be denied on
the merits.
I.
BACKGROUND
Petitioner was born on April 14, 1969, in St. Kitts-Nevis,
and entered the United States on August 2, 1979.
Petitioner was
never naturalized as a citizen of the United States.
Upon his release from jail, Petitioner entered immigration
custody on or about June 28, 2010.
Prior to his entry into
immigration custody, immigration officials had determined that,
based on his criminal history,2 Petitioner must be detained
pending a final determination of his removability.
§ 1226(c)(1)(B).
See 8 U.S.C.
See also 8 U.S.C. § 1227(a)(2)(A)(ii) (relating
to conviction of two or more crimes involving moral turpitude).
The original Notice to Appear asserted removability solely
based upon Petitioner’s March 2003 conviction of the offense of
2
It is not in dispute that Petitioner has been convicted in
the Superior Court of New Jersey, Essex County, of: (1) violation
of N.J. Stat. 2C:35-5b(3) (possession with intent to distribute
heroin) (November 6, 1997); (2) violation of N.J. Stat. 2C:3510a(1) (manufacture, distribute and/or dispense heroin and
cocaine) (March 3, 2000); (3) violation of N.J. Stat. 2C:35-5b(3)
(possession of a controlled dangerous substance, here, cocaine)
(April 3, 2003).
2
possessions with intent to distribute controlled dangerous
substances in violation of N.J.Stat. 2C:35-10a(1).
On July 15,
2010, less than one month after Petitioner entered immigration
custody, his removal proceedings began.
There were a total of 14
adjournments during the course of those proceedings.
It is
undisputed that ten were at the request of Petitioner, to seek
representation or to prepare his case and applications for
relief, three were made for administrative reasons, and one was
made at the request of the government.
During the proceedings, on November 5, 2010, the government
amended the charges relating to Petitioner’s removability to
include all three of Petitioner’s drug convictions.
The amended
charging document was served on Petitioner four days later, on
November 9, 2010.
Petitioner does not appear to have disputed
the convictions.
In addition, the schedule of adjournments does
not reflect that any adjournment resulted from this amendment.
More specifically, the hearing scheduled for November 4, 2010,
before the amendment, was adjourning to allow Petitioner to
prepare his case and the hearing scheduled for December 8, 2010,
after the amendment, was continued because there was insufficient
time to complete the hearing.
(Motion to Dismiss, Ex. E.)
On January 27, 2011, approximately seven months after he
entered immigration custody, and while his removal proceedings
were ongoing, Petitioner submitted this Petition for writ of
3
habeas corpus, challenging his prolonged pre-removal-order
detention and urging this Court, under the Due Process Clause of
the Fifth Amendment, to construe the relevant detention statute
as not authorizing his continued detention in the absence of a
constitutionally adequate custody hearing, especially where he
has “substantial challenges” to his removal.3
On May 18, 2011, the Immigration Judge ordered Petitioner
removed.
Two days later, on May 20, 2011, Respondent moved to
dismiss the Petition, asserting that Petitioner’s continued
detention was lawful and constitutional under the U.S. Supreme
Court decision in Demore v Kim, 538 U.S. 510 (2002).
In the
alternative, Respondent answered the Petition and requested that
the Petition be denied on the merits.
As noted by Respondent,
the Order of Removal would become final in thirty days, or on
June 17, 2011, unless Petitioner appealed to the Board of
Immigration Appeals.4
See 8 C.F.R. § 1003.28(b).
3
Petitioner does not elaborate on the nature of the alleged
“substantial challenges” to his removal.
4
This point is significant because, once an order of
removal becomes final, detention continues under 8 U.S.C.
§ 1231(a), which governs the detention and removal of an alien
subject to a final order of removal. Thus, if Petitioner were
now detained under the post-removal-order statute, § 1231(a), the
issue of the propriety of his earlier detention under the preremoval-order statute, § 1226(c), probably would be moot.
Section 1231(a)(1) requires the Attorney General to attempt
to effectuate removal within a 90-day “removal period.” Section
1231(a)(6) permits continued detention if removal is not effected
within 90 days. However, the Supreme Court has held that such
4
In his Reply, dated June 7, 2011, Petitioner did not state
whether he had appealed, or intended to appeal, the Immigration
Judge’s removal decision to the Board of Immigration Appeals.
Neither party has updated the Court on the current status of the
removal order or of any appeals that may have been filed.5
As
Respondent is under order of this Court to advise the Court
within seven days of any change in Petitioner’s custody status,
see Order [5] to Answer, this Court will proceed under the
understanding that the order of removal is not yet “final” and
that Petitioner remains detained under § 1226(c).
II.
ANALYSIS
Title 28 U.S.C. Section 1226(c) requires federal immigration
authorities to take into custody any person who is removable from
this country because he has committed certain crimes, including,
for example, certain crimes involving moral turpitude or
controlled substances.
Pre-removal-order detention under this
post-removal-order detention is subject to a temporal
reasonableness standard. Specifically, subject to certain
limited exceptions, once a presumptively-reasonable six-month
period of post-removal-order detention has passed, a resident
alien must be released if he can establish that his removal is
not reasonably foreseeable. See generally Zadvydas v. Davis, 533
U.S. 678 (2001); Clark v. Martinez, 543 U.S. 371 (2005).
5
As of the dates the Motion/Answer and Reply were filed,
Petitioner had available to him the option to appeal the order of
removal to the Bureau of Immigration Appeals and, if
unsuccessful, thereafter, to seek review in the Court of Appeals.
The Court notes that a PACER search of filings in the United
States Court of Appeals for the Third Circuit reflects that no
petition for review has been filed in that Court.
5
statute is mandatory, does not permit release on bond, and does
not, by its terms, impose any limitations on the length of
detention.6
In Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court
considered whether mandatory pre-removal-order detention under
§ 1226(c) violates due process.
In the case of an alien who
conceded that he fell within the categories of deportable aliens
subject to mandatory detention under § 1226(c), the Supreme Court
found that detention of deportable criminal aliens pending their
removal proceedings did not violate due process.
531.
538 U.S. at
The Court noted that such proceedings typically last only a
few months and, in contrast to the potentially indefinite postremoval-order period detention rejected in Zadvydas v. Davis, 533
U.S. 678 (2001), pre-removal-order detention has a finite
termination point.7
538 U.S. at 529-530.
In his concurrence,
Justice Kennedy took the position that circumstances could arise
6
Although § 1226(c) does not provide for bail, an alien
detained pursuant to § 1226(c) may move for a Joseph hearing to
determine if he falls within the categories of aliens subject to
mandatory detention. In re Joseph, 22 I.&N. Dec. 799 (BIA 1999).
At the Joseph hearing, a detainee may avoid mandatory detention
by demonstrating that he is not an alien, was not convicted of
the predicate crime(s), or that the BICE is otherwise
substantially unlikely to establish that he is in fact subject to
mandatory detention. See 8 C.F.R. § 3.19(h)(2)(ii). Here, there
is no dispute that Petitioner falls within the class of criminal
aliens subject to mandatory detention under § 1226(c).
7
The petitioner in Demore had been detained approximately
six months at the time his petition was decided.
6
in which long-term pre-removal-order detention might violate due
process.
538 U.S. at 532-33 (Kennedy, J., concurring).
While this matter was pending, the Court of Appeals for the
Third Circuit addressed the question whether prolonged detention
under § 1226(c) can ever violate an alien’s right not to be
deprived of liberty without due process.
See Diop v.
ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011).
Applying the
principle of statutory construction that “‘when an Act of
Congress raises a serious doubt as to its constitutionality, ...
[courts] will first ascertain whether a construction of the
statute is fairly possible by which the question may be avoided,”
Diop, 656 F.3d at 231 (quoting Zadvydas, 533 U.S. at 678), the
Court of Appeals concluded that § 1226(c) “implicitly authorizes
detention for a reasonable amount of time, after which the
authorities must make an individualized inquiry into whether
detention is still necessary to fulfill the statute’s purposes of
ensuring that an alien attends removal proceedings and that his
release will not pose a danger to the community.”
at 231.
Diop, 656 F.3d
“[W]hen detention becomes unreasonable, 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 Court of Appeals held that reviewing courts “must
exercise their independent judgment as to what is reasonable.”
7
Diop, 656 F.3d at 234.
The Court declined to adopt any one-size-
fits-all approach to the length of pre-removal-order detention
that should be deemed reasonable.
To the contrary, the
reasonableness determination must take into account a given
individual detainee’s need for more or less time, the exigencies
of a particular case, and errors in the proceedings that cause
unnecessary delay.
Id.
Nevertheless, the Court noted that,
given the fact that the Supreme Court believed that the purposes
of the statute would be fulfilled in the vast majority of cases
within a month and a half, and five months at the maximum, “the
constitutional case for continued detention without inquiry into
its necessity becomes more and more suspect as detention
continues past those thresholds.”
Id.
In Diop, the petitioner had been detained for three years at
the time his petition was decided.
Although the removal
proceedings had included several continuances at the petitioner’s
request, the proceedings had been prolonged also because of
numerous errors by the immigration judge, necessitating appeals,
combined with the government’s failure timely to secure evidence
that bore directly on the issue of whether the petitioner was
properly detained.
Here, without benefit of the Diop decision, Respondent has
urged this Court to dismiss the Petition on the ground that,
under Demore, there is no “reasonableness” limitation to the
8
length of detention under § 1226(c).
As noted above, the Court
of Appeals rejected this position in its opinion in Diop.
Thus,
this Court must deny the Motion to Dismiss under Demore.
Even without benefit of the Diop decision, however,
Respondent argued that the length of Petitioner’s detention was
not unreasonable, because the length of the proceedings was due
primarily to Petitioner’s actions, and asked this Court to deny
the Petition.
This Court agrees that the length of Petitioner’s
detention was not unreasonable.
Petitioner appeared for his first hearing less than three
weeks after entering immigration detention.
Petitioner filed his
Petition approximately seven months after entering immigration
detention, only a short time longer than the petitioner in Demore
was detained, a period clearly not unreasonable, especially in
light of the fact that, of the seven continuances during that
period, one was at the request of the government, one was because
there was insufficient time to complete the hearing, and the
remaining five were at the request of Petitioner.
By the time
Respondent answered the Petition and moved to dismiss,
approximately eleven months had elapsed.
As noted above, during
that time, Petitioner had ten times requested continuances to
obtain counsel or prepare his case.
(Motion to Dismiss, Ex. E,
Decl. of Immigration Court Administrator Charlene McLaughlin.)
9
In his Reply, while arguing (correctly) that § 1226 contains
an implicit “reasonableness” limitation, Petitioner offered
nothing to explain why the particular facts surrounding the
length of his detention rendered his detention unreasonably
prolonged.
As in Demore, Petitioner does not contest that he
falls within the categories of criminal aliens subject to
mandatory detention under § 1226(c).
Contrary to the situation
presented in Diop, Petitioner cannot point to numerous errors by
the Immigration Judge necessitating numerous appeals.
Instead,
the delays here are attributable almost exclusively to
Petitioner’s repeated requests for adjournments.
Nevertheless,
Petitioner has provided this Court with no explanation of the
reasons for the repeated requests for continuances.
Petitioner
cannot repeatedly request continuances and then complain that the
resultant prolonged detention is unconstitutionally unreasonable.
To the extent there has been any delay since briefing on this
matter was completed, Petitioner again has failed to apprise this
Court of the relevant circumstances.
Accordingly, this Court
finds that Petitioner’s detention has not been unconstitutionally
prolonged.
10
III.
CONCLUSION
For the reasons set forth above, the Motion [9] to Dismiss
will be denied, but the Petition will be denied on the merits,
without prejudice to Petitioner filing a new and separate
petition should his continued detention become unreasonably
prolonged.
An appropriate order follows.
s/William J. Martini
William J. Martini
United States District Judge
Dated: December 12, 2011
11
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