BULATOV v. HENDRICKS et al
Filing
22
OPINION. Signed by Judge Faith S. Hochberg on 10/4/12. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MIKHAIL BULATOV,
Petitioner,
v.
ROY L. HENDRICKS, et al.,
Respondents.
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Civil Action No. 11-845 (FSH)
OPINION
APPEARANCES:
Petitioner, pro se
Mikhail Bulatov
Essex County Corr. Fac.
Newark, NJ 07105
Counsel for Respondents
Leah Amber Bynon
Assistant U.S. Attorney
970 Broad Street
Suite 700
Newark, NJ 07102
HOCHBERG, District Judge
Petitioner, Mikhail Bulatov, an alien detained in connection
with removal proceedings and currently confined at the Essex
County Correctional Facility in Newark, New Jersey, has submitted
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241.1
1
The Respondents include Warden Roy L. Hendricks,
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 ... .
Secretary of the Department of Homeland Security Janet
Napolitano, U.S. Attorney General Eric Holder, and immigration
officials John Tsoukaris and John T. Morton.
Because it appears from a review of the parties’ submissions
that Petitioner is not entitled to relief, the Petition will be
denied.
I.
BACKGROUND
Petitioner is a citizen of Russia who entered the United
States in 2003 on a valid H4 Visa with authorization to stay in
the United States for a period not to exceed three months.
On or about March 20, 2009, Petitioner submitted a Form 485
Adjustment of Status application in order to change his
immigration status.
On that form, Petitioner falsely stated that
he had never been arrested or imprisoned in the Republic of
Kazakhstan prior to his arrival in the United States.2
Petitioner was placed in removal proceedings, for
overstaying his visa, by issuance of a Notice to Appear on April
13, 2009.
On October 14, 2009, Petitioner pleaded guilty in this Court
to one count of making a false statement on his Adjustment of
2
As Petitioner has admitted, he was arrested and
incarcerated in the Republic of Kazakhstan, prior to his entry
into the United States, on charges related to the deaths of four
persons in 1998. Those charges remain pending and there
currently exists an Interpol Red Notice and Request from the
Republic of Kazakhstan seeking Petitioner’s arrest and
extradition.
2
status form, in violation of 18 U.S.C. § 1001, and was sentenced
to a five-month term of imprisonment.
See United States v.
Bulatov, Criminal No. 09-0767 (D.N.J.).3
Upon his release on
March 29, 2010, Petitioner was taken into custody by immigration
officials and was detained at the Essex County Correctional
Facility, where he remains.
The Notice to Appear charged that
Petitioner was removable for overstaying his visa, in violation
of Section 237(a)(1)(B) of the Immigration and Nationality Act.
At the time Petitioner was taken into immigration custody,
the Supervisory Deportation Officer conducted a custody
determination in which he determined that Mr. Bulatov should
remain detained until removed.
Petitioner was advised that he
could request review of that determination, which he initially
declined.
Later, having made a request for a change in custody,
pursuant to 8 C.F.R. § 236.1(c), Petitioner appeared for a bond
hearing before an Immigration Judge on April 8, 2010.
The
Immigration Judge denied Petitioner’s request for a change in
custody.
Petitioner did not appeal this decision.
Petitioner appeared for a master calendar hearing on April
8, 2010, at which he conceded removability.
3
Petitioner requested
This Court will take judicial notice of the dockets of
this and other federal courts in cases related to this Petition.
See Fed.R.Evid. 201; Southern Cross Overseas Agencies, Inc. v.
Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426-27 (3d Cir.
1999) (federal court, on a motion to dismiss, may take judicial
notice of another court’s opinion, not for the truth of the facts
recited therein, but for the existence of the opinion, which is
not subject to reasonable dispute over its authenticity).
3
adjournments to retain new counsel and to prepare applications
for relief from removability.
Petitioner filed an application
for asylum and withholding of removal and other relief on July
15, 2010.
On September 29, 2010, Petitioner appeared for a full-
day merits hearing on his application.
The Immigration Judge
scheduled the hearing to continue on October 20, 2010.
On
December 2, 2010, the Immigration Judge issued her opinion and
order denying Petitioner’s various applications for relief and
ordering Petitioner removed to Russia.
Petitioner timely
appealed to the Board of Immigration Appeals (“BIA”).
The BIA originally ordered the submission of briefs by
February 15, 2011.
Petitioner’s counsel requested an extension
of time, bringing the deadline to March 8, 2011.
On February 8,
2011, before the briefing deadline, Petitioner’s counsel filed a
motion to correct the proceedings transcript, which the BIA
granted.
The Immigration Court sent the corrected transcript to
the BIA on March 30, 2011.
of briefs by April 28, 2011.
The BIA then ordered the submission
Petitioner’s counsel again
requested an extension, bringing the deadline to May 19, 2011.
On July 6, 2011, the BIA issued a decision affirming the
Immigration Judge’s decision ordering that Petitioner be removed.
Petitioner timely moved for the BIA to re-open his administrative
appeal.
See 8 U.S.C. § 1229a(c)(7).
4
The BIA denied the motion
by decision dated November 23, 2011, at which time the order of
removal became administratively final.
Meanwhile, on July 29, 2011, the United States Court of
Appeals for the Third Circuit docketed Petitioner’s application
for review of the July 6, 2011 BIA decision.
See Bulatov v.
Attorney General of the United States, No. 11-3048 (3d Cir.).
On
October 6, 2011, the Court of Appeals granted Petitioner’s motion
for stay of removal.
The Court of Appeals has not yet entered
its decision on the merits.
Petitioner also has appealed the
November 23, 2011, BIA decision denying his application to reopen.
See Bulatov v. Attorney General of the United States, No.
11-4357 (3d Cir.).
The appeals have been consolidated.
On August 22, 2011, the government served Petitioner with a
Notice to Alien of File Custody Review, which he refused to sign
because he disputed the nature of his detention, whether it
should be considered pre-removal-order or post-removal-order
detention, and the standards by which the propriety of his
detention should be determined.
16.)
(Letter Reply, Docket Entry No.
On October 24, 2011, Petitioner was served with a Decision
to Continue Detention, in which he was advised that his file had
been reviewed, including his false statements and criminal
record, that he had not submitted any documentation or evidence
to support his release, and that therefore he was to remain in
immigration custody until his removal.
5
The Decision also stated
that Petitioner’s custody status would again be reviewed 90 days
after the stay of removal was lifted or one year from the date of
that Decision.
(Letter, Docket Entry No. 18.)
On June 15, 2012, Petitioner filed a motion in the
Immigration Court for custody redetermination.
On June 19, 2012,
the Immigration Judge denied the motion for lack of jurisdiction,
on the ground that Petitioner was subject to an administratively
final order of removal.
See 8 C.F.R. § 1236.1(d)(1).
Petitioner
appealed and, on August 31, 2012, the BIA affirmed on the grounds
cited by the Immigration Judge.
(Letter Motion, Docket Entry No.
21.)
On February 8, 2011, during the pendency of the
administrative appeal of the Immigration Judge’s order of
removal, Petitioner submitted this Petition, challenging the
constitutionality of his prolonged detention.
Petitioner
contends that Section 1226(a) must be read to permit
discretionary detention only for the period reasonably necessary
to secure removal and that, therefore, prolonged pre-removalorder detention in the absence of an adequate hearing violates
his right to due process.
Petitioner contends that he has now
exhausted his administrative remedies, that his detention has
become unreasonably prolonged, and that he should be considered a
pre-release-order detainee entitled to a bond hearing.
In
support of his Petition, Petitioner relies upon Demore v. Kim,
6
538 U.S. 510 (2004) (relating to constitutionality of preremoval-order detention), Diop v. Holder, 656 F.3d 1221 (3d Cir.
2011) (same), and Zadvydas v. Davis, 533 U.S. 678 (2001)
(relating to constitutionality of post-removal-order detention).4
In their Answer, Respondents assert that this Court lacks
jurisdiction to review the discretionary decision to deny a bond
and that Petitioner’s detention is not unconstitutionally
prolonged.
During the pendency of this matter, Petitioner has
filed several Letter replies advising the Court of developments
in his removal proceedings and recent caselaw, appending copies
of the relevant documents, to which Respondents have not
responded.
Briefing is complete and this matter is now ready for
decision.
II.
A.
ANALYSIS
Detention of Aliens in Removal Proceedings
Federal law sets forth the authority of the Attorney General
to detain aliens in removal proceedings.
Title 8 U.S.C.
§ 1226(a) permits the Attorney General to arrest and detain
certain aliens, “pending a decision on whether the alien is to be
removed from the United States,” and permits the Attorney General
to continue to detain an arrested alien or to release the alien
on bond or conditional parole.
Under Title 8 U.S.C. § 1226(c),
4
To the extent the Petition could be construed as
challenging the order of removal, jurisdiction to review the
order of removal lies with the Court of Appeals, before which
Petitioner’s appeal is pending. See 8 U.S.C. § 1252.
7
however, the Attorney General is required to detain certain
criminal aliens during the pendency of their removal proceedings.
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).5
These
generally are referred to as “pre-removal-order” detention
provisions.
“Post-removal-order” detention is governed by 8 U.S.C.
§ 1231(a).
Section 1231(a)(1) requires the Attorney General to
attempt to effectuate removal within a 90-day “removal period.”
The removal period begins on the latest of the
following:
(i) The date the order of removal becomes
administratively final.
(ii) If the removal order is judicially reviewed and if
a court orders a stay of the removal of the alien, the
date of the court's final order.
(iii) If the alien is detained or confined (except
under an immigration process), the date the alien is
released from detention or confinement.
8 U.S.C. § 1231(a)(1)(B).
Section 1231(a)(6) permits continued
detention if removal is not effected within 90 days.
The Supreme Court first addressed the constitutionality of
any of these detention provisions in Zadvydas v. Davis, 533 U.S.
5
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, or that the Bureau of
Immigration and Customs Enforcement is otherwise substantially
unlikely to establish that he is in fact subject to mandatory
detention.
8
678 (2001), in which the Court held that extended post-removalorder detention under § 1231(a)(6) is subject to a temporal
reasonableness standard.
That is, the government may not detain
indefinitely an alien ordered removed, but may detain such an
alien only for a period reasonably necessary to secure his
removal.
More specifically, once a presumptively-reasonable six-
month period of post-removal-order detention has passed, a
detained alien must be released if he can establish that his
removal is not reasonably foreseeable.
See also Clark v.
Martinez, 543 U.S. 371 (2005) (Zadvydas holding applies to aliens
deemed inadmissible to the United States).
In Demore v. Kim, 538 U.S. 510 (2003), upon which Petitioner
relies, the Supreme Court considered whether mandatory preremoval-order detention of criminal aliens 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
mandatory detention of deportable criminal aliens pending their
removal proceedings did not violate due process.
531.
538 U.S. at
As an initial matter, the Court found that “[s]uch
detention necessarily serves the purpose of preventing deportable
criminal aliens from fleeing prior to or during their removal
proceedings, thus increasing the chance that, if ordered removed,
the aliens will be successfully removed.”
9
In addition, the Court
noted that such proceedings typically last only a few months and
that pre-removal-order detention has a finite termination point issuance of a final decision on removability - rather than the
“indefinite” and “potentially permanent” detention previously
found, in Zadvydas, to be unconstitutional when imposed upon
aliens subject to a final removal order but for whom removal was
not reasonably foreseeable.
538 U.S. at 528-530 (distinguishing
post-removal-order detention examined in Zadvydas).
In his
concurrence, however, Justice Kennedy took the position that
circumstances could arise in which long-term pre-removal-order
mandatory detention might violate due process.
538 U.S. at 532-
33 (Kennedy, J., concurring).
These cases form the foundation for Petitioner’s challenge
to his detention.
B.
Petitioner’s Detention
Petitioner was taken into custody pursuant to 8 U.S.C.
§ 1226(a), which permits the Attorney General to exercise his
discretion in determining whether to detain an alien during
removal proceedings or to release such an alien on bond or
parole.
Petitioner was granted a prompt administrative custody
determination, followed by a bond hearing before an Immigration
Judge, at which a decision was made to deny release.
declined to appeal that decision to the BIA.
10
Petitioner
See 8 C.F.R.
§§ 236.1, 287.7.
Thereafter, Petitioner’s custody was again
administratively reviewed in a proceeding in which the government
treated Petitioner as a post-removal-order detainee.
Most
recently, Petitioner moved for a bond redetermination which was
denied for lack of jurisdiction on the ground that Petitioner was
then subject to an administratively final order of removal.
The question whether Petitioner is detained under the
discretionary pre-removal-order statute, 8 U.S.C. § 1226(a), or
the post-removal-order statute, 8 U.S.C. § 1231, was recently
decided in accord with Petitioner’s position in Leslie v.
Attorney General of the U.S., 678 F.3d 265 (3d Cir. 2012).
The
Court of Appeals there decided that an alien held subject to and
within a stay of removal cannot yet be in the “removal period” of
§ 1231 but is, instead, confined pursuant to the pre-removalorder detention of § 1226.
Id. at 270.
Here, the Court of Appeals issued a stay of removal on
October 6, 2011, before the administrative proceedings were
concluded on November 23, 2011.
Accordingly, Petitioner has been
held in discretionary pre-removal-order detention, under
§ 1226(a), since he was taken into immigration custody on March
29, 2010.
See Contant v. Holder, 352 Fed. Appx. 692 (3d Cir.
2009); Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008).
Nevertheless, pursuant to 8 U.S.C. § 1226(e), “The Attorney
General’s discretionary judgment regarding the application of
11
this section shall not be subject to review.
No court may set
aside any action or decision by the Attorney General under this
section regarding the detention or release of any alien or the
grant, revocation, or denial of bond or parole.”
This Court
agrees that it lacks jurisdiction to review the discretionary
custody decisions; in any event, Petitioner does not challenge
those discretionary decisions.
He alleges a constitutional
violation, detention in violation of his due process rights.
Courts generally agree that § 1226(e) does not divest them of
jurisdiction to hear challenges to prolonged pre-removal-order
detention under the Attorney General’s discretionary authority,
where such challenges raise constitutional claims or questions of
law.
See, e.g., Singh v. Holder, 638 F.3d 1196, 1200-02 (9th
Cir. 2011) (collecting cases and holding that § 1226(e) does not
limit federal court’s jurisdiction to review bond hearing
determinations for constitutional claims or legal error) (citing
Demore v. Kim, 538 U.S. 520, 516-17 (2003)).
Taking guidance from Justice Kennedy’s concurrence in Demore
v. Kim, the Third Circuit has held that there are due process
limitations on the duration of mandatory pre-removal-order
detention under § 1226(c).
Under the Supreme Court’s holding [in Demore], Congress
did not violate the Constitution when it authorized
mandatory detention without a bond hearing for certain
criminal aliens under § 1226(c). This means that the
Executive Branch must detain an alien at the beginning
of removal proceedings, without a bond hearing -- and
12
may do so consistent with the Due Process Clause -- so
long as the alien is given some sort of hearing when
initially detained at which he may challenge the basis
of his detention. [This is the Joseph hearing.]
However, the constitutionality of this practice is a
function of the length of the detention. At a certain
point, continued detention becomes unreasonable and the
Executive Branch’s implementation of § 1226(c) becomes
unconstitutional unless the Government has justified
its actions at a hearing inquiring into whether
continued detention is consistent with the law’s
purposes of preventing flight and dangers to the
community. This will necessarily be a fact-dependent
inquiry that will vary depending on individual
circumstances. We decline to establish a universal
point at which detention will always be considered
unreasonable.
...
In short, when 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.
Diop v. ICE/Homeland Security, 656 F.3d 221, 232-33 (3d Cir.
2011) (emphasis in original) (footnotes omitted).
Turning to the question of when mandatory pre-removal-order
detention becomes “unreasonable,” the Court of Appeals noted that
the petitioner in Demore had been detained only six months, only
slightly longer than the average length of pre-removal-order
detention in contested cases, when his petition was decided.
The
Court of Appeals agreed with the government that the
reasonableness determination must take into account a given
individual detainee’s need for more or less time, as well as the
exigencies of a particular case, but also held that the
13
reasonableness inquiry must take into account errors in the
proceedings that cause unnecessary delay.
In Diop, the Court of
Appeals concluded that the petitioner’s 35-month detention
period, extended by the immigration judge’s numerous errors and
the government’s failure to secure, at the earliest possible
time, evidence that bore directly on the issue of whether Diop
was properly detained, was unreasonably long.
The Court of Appeals for the Third Circuit also has had the
opportunity to consider the constitutionality of prolonged
detention under § 1226(a), the discretionary pre-removal-order
detention provision directly at issue here.
In Contant v.
Holder, 352 Fed. Appx. 692 (3d Cir. 2009), the Court of Appeals
distinguished both Zadvydas and Demore, Zadvydas because postremoval-order detention was potentially indefinite and Demore
because it involved mandatory detention.
Consistent with
Zadvydas, however, the Court of Appeals construed the
discretionary pre-removal-order detention provision, § 1226(a),
as limiting the Attorney General’s detention authority to the
period “reasonably necessary” to effectuate the alien’s removal.
In reaching its decision, the Third Circuit relied on PrietoRomero v. Clark, 534 F.3d 1053 (9th Cir. 2008), in which the
Court of Appeals for the Ninth Circuit held that the 3-year
detention of an alien in removal proceedings, though prolonged,
was not indefinite or unconstitutional.
14
The Ninth Circuit found
that removal in the reasonably foreseeable future was likely, as
a petition for review of the administrative order of removal was
then pending before it, and there was no indication that the
petitioner could not be repatriated to his country of origin if
ordered removed.
Thus, the petitioner was “not stuck in a
‘removable but unremovable limbo.’”
1063 (citation omitted).
Prieto-Romero, 534 F.3d at
Though the end date of the petitioner’s
removal proceedings was uncertain, the Ninth Circuit was
persuaded, because an Immigration Judge and the BIA had found the
petitioner removable and strict procedural rules would govern
judicial review of that decision, that the end date was
reasonably foreseeable.
Similarly, in Contant, the Third Circuit held that the alien
petitioner’s 19-month pre-removal-order detention was not
“indefinite” and, therefore, unconstitutional, as a decision on
his removability appeared reasonably foreseeable and there was no
indication that he could not be removed to his country of origin
at the conclusion of his removal proceedings.
The Court further
noted that the petitioner had been afforded a bond hearing and
that much of the delay in proceedings was due to the alien’s own
request for a continuance.
Here, Petitioner has failed to establish that his detention
is indefinite or that his removal is not reasonably foreseeable.
As of this writing, briefing before the Court of Appeals in
15
Petitioner’s consolidated appeals is nearly complete.
Thus,
although the end date of his removal proceedings is uncertain, it
surely is reasonably foreseeable.
Petitioner has not suggested
that he cannot be removed if he is unsuccessful in challenging
his removal.
Thus, Petitioner’s detention, though prolonged, is
not indefinite.
In addition, much of the delay in Petitioner’s proceedings
is attributable to him.
Petitioner requested and received an
adjournment before the Immigration Judge of approximately three
months, after conceding removability, to prepare an application
for relief from removal.
Before the BIA, Petitioner’s counsel
requested two short extensions of time, which together amounted
to approximately six weeks.
Before the Court of Appeals,
Petitioner has requested extensions of time or for leave to file
noncompliant briefs several times, accounting for delays of
approximately six months.
11-3048 (3d Cir.).
See Bulatov v. Attorney General, No.
Together, these requests for extensions of
time account for approximately one-third of Petitioner’s 30-month
detention.
Finally, Petitioner received an initial bond hearing before
an Immigration Judge which he declined to appeal, and he has
received a subsequent administrative review.
16
He is scheduled for
another administrative custody review soon.6
He has received the
process he is due.
Accordingly, for all the foregoing reasons, Petitioner has
failed to establish that his detention is unlawful.
III.
CONCLUSION
For the reasons set forth above, the Petition for writ of
habeas corpus will be denied.
An appropriate order follows.
s/ Faith S. Hochberg
Faith S. Hochberg
United States District Judge
Dated: October 4, 2012
6
As the Third Circuit’s Leslie decision has resolved the
question regarding the statutory authority for Petitioner’s
detention, 8 U.S.C. § 1226(a), this Court anticipates that future
custody reviews will be conducted pursuant to the standards
applicable to that provision.
17
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