LOPEZ v. AVILES et al
Filing
8
OPINION fld. Signed by Judge Jose L. Linares on 12/13/13. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHRISTIAN RAMOS LOPEZ,
Petitioner,
Civil Action No. 13-3106 (JLL)
OPINION
OSCAR AVILES, et al.,
Respondents.
APPEARANCES:
CHRISTIAN RAMOS LOPEZ, Petitioner pro se
269927
Hudson County Correctional Center
35 Hackensack Avenue
Kearny, N.J. 07032
MARK CHRISTOPHER ORLOWSKI, Counsel for Respondents
Office of the U.S. Attorney
970 Broad Street
Suite 700
Newark, N.J. 07102
LINARES, District Judge
Petitioner Christian Ramos Lopez (“Petitioner”) an immigration detaine
e presently
confined at the Hudson County Correctional Center in Kearny, New Jersey,
has submitted a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241,’ challenging his mandatory
detention during his immigration removal proceedings. The sole respon
dent is Warden Oscar
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 prisone
r unless (3) He is in
custody in violation of the Constitution or laws or treaties of the United
States....”
...
Aviles. Because it appears from review of the petition that Petitioner is not entitle
d to the relief
he
seeks at this time, the Court will deny the petition without prejudice.
I. BACKGROUND
Petitioner, a native and citizen of Honduras, has been a Lawful Permanent Reside
nt of the
United States since May 28, 2006. (Pet. ¶ 9.) On or about May 5, 2010, Petitio
ner was convicted
of four counts of Criminal Sale of Marijuana in the Fourth Degree in the Crimin
al Court of the City
of New York. (Resp’t’s Answer, Flanagan Deci. 3.) Petitioner was senten
ced to a 30 day term
¶
of incarceration for those violations. (Id.) On or about May 25, 2012, United
States Immigration
and Customs Enforcement (“ICE”) arrested and detained Petitioner based
on his four convictions
for the Criminal Sale of Marijuana in the Fourth Degree. (Resp’t’s Answer, Flanag
an Deci. ¶ 3.)
Petitioner was served with a Notice to Appear (“NTA”) and on June 1, 2012,
ICE placed Petitioner
in removal proceedings. (Id. at ¶ 4.)
The Government provides a summary of the procedural history of Petitio
ner’s removal
proceedings which is consistent with this Court’s review of the record:
Thereafter, on June 19, 2012, Petitioner appeared with his attorney for a first
master
hearing before the Immigration Court, at which time he requested a contin
uance for
further preparation. Petitioner appeared before the Immigration Court
again on
June 27, 2012 for a second master hearing, and the Immigration Court
adjourned
the matter for Petitioner to file an application for relief. Petitioner
next appeared
before the Immigration Court on August 29, 2012 for a third master
calendar
hearing, and did not at that time file his application for relief. Over
ICE’s
objection, the Immigration Court adjourned the matter to November 7,
2012, and
then subsequently further adjourned proceedings.. .to January 23, 2013.
Petitioner
appeared with his attorney for a fourth master calendar hearing on
January 23,
2013, and once again over ICE’s objection, the Immigration Court
adjourned the
matter to February 22, 2013 for Petitioner to file a relief application.
Petitioner’s
substituted attorney then requested a further adjournment of the Februa
ry 22, 2013
hearing, until April 3, 2013. On April 3, 2013, Petitioner appear
ed with his
attorney for a fifth master calendar hearing, and the Immigration
Court again
adjourned the case for Petitioner to file supporting documents.
Petitioner
appeared again on May 15, 2013 for a sixth master calendar hearing.
At that time,
2
the Immigration Court adjourned the matter for a merits hearing on August 29,
2013, notwithstanding ICE’s request for an earlier date. On August 29, 2013,
Petitioner was disruptive in connection with his transport to the merits hearing,
resulting in a late arrival. As a result, the Immigration Court did not have
sufficient time to conduct the hearing, and adjourned the matter for a merits hearing
to October 22, 2013. Petitioner, through his attorney, requested by letter dated
September 17, 2013, for the Immigration Court to reschedule the October 22, 2013
merits hearing. ICE filed opposition to the request on September 25, 2013.
(Resp’t’s Answer 7-9) (internal citations omitted). The Immigration Court granted
the
continuance and the merits hearing was rescheduled for October 25, 2013. (Id.,
Flanagan
DecI.
¶
12.)
H. DISCUSSION
A. Legal Standard
Federal law sets forth the authority of the Attorney General to detain aliens in
removal
proceedings, both before and after issuance of a final order of removal.
Title 8 U.S.C.
§
1226 governs the pre-removal-order detention of an alien.
Section
1226(a) authorizes the Attorney General to arrest, and to detain or release
, an alien, pending a
decision on whether the alien is to be removed from the United States,
except as provided in
subsection (c). Section 1226(a) provides, in relevant part:
(a) Arrest, detention, and release
On a warrant issued by the Attorney General, an alien may be arrested and
detained
pending a decision on whether the alien is to be removed from the United
States.
Except as provided in subsection (c) of this section and pending such decisio
n, the
Attorney General(1) may continue to detain the arrested alien; and
(2) may release the alien on
(A) bond of at least $1,500 with security approved by, and containing
conditions
prescribed by, the Attorney General; or
3
(B) conditional parole;
8 U.S.C.
§ 1226(a).
Certain criminal aliens, however, are subject to mandatory detention pending the outcom
e
of removal proceedings, pursuant to 8 U.S.C.
§ 1226(c)(l), which provides in relevant part:
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any offense covered in section
I 182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in Sectio
n
1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1 227(a)(2)(A)(i) of this title on the basis of an
offense for which the alien has been sentence{d] to a term of imprisonment of at
least 1 year, or
(D) is inadmissible under section 11 82(a)(3)(B) of this title or deportable under
section 1227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is released on parole,
supervised release, or probation, and without regard to whether the alien may be
arrested or imprisoned again for the same offense.
8 U.S.C.
§ 1226(c)(1).
“Post-removal order” detention is governed by 8 U.S.C.
§ 1231(a). Section 1231(a)(I)
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 proces
s), the
date the alien is released from detention or confinement.
4
8 U.S.C.
§ 123 1(a)(l)(B). “An order of removal made bythe immigration judge at the conclusion
of proceedings
...
shall become final
...
[ulpon dismissal of an appeal by the Board of Immigration
Appeals.” 8 C.F.R.
§ 1241.1(a). During the removal period, “the Attorney General shall detain
the alien.” 8 U.S.C.
§ 1231(a) (2). Section 123 1(a)(6) permits continued detention if removal is
not effected within 90 days. However, the Supreme Court has held that such post-removal
-order
detention is
subject to
a temporal reasonableness
standard.
Specifically,
once a
presumptively-reasonable six-month period of post-removal-order detenti
on has passed, a
detained alien must be released if he can establish that his removal is not reasonably
foreseeable.
See Zadvydas v. Davis, 533 U.S. 678 (2001); Clarkv. Martinez, 543 U.S. 371 (2005)
.
B. Analysis
Petitioner challenges his detention pursuant to pre-removal proceedings under 8
U.S.C.
§
1226(c) because he was not taken into ICE custody immediately upon compl
etion of his criminal
sentence for a removable offense.
As set forth above, an alien is subject to mandatory detention and subsequently remov
al or
deportation from the United States when he/she:
is deportable by reason of having committed any offense covered in section
1 227(a)(2)(A)(iii), (B), (C), or (D) of this title when the alien is released,
without
regard to whether the alien is released on parole, supervised release, or
probation,
and without regard to whether the alien maybe arrested or imprisoned again
for the
same offense.
...
8 U.S.C.
§ l226(c)(1) (B).
The Third Circuit Court of Appeals recently addressed this exact
issue in Sylvain v.
Attorney Gen. of US., 714 F.3d 150 (3d Cir. 2013).
U.S.C.
In that case, the court held that “[ejven if[8
§ 1226(c)] calls for detention ‘when the alien is released,’ and even if ‘when’ implies
something less than four years, nothing in the statute suggests that
immigration officials lose
5
authority if they delay. See Sylvain, 714 F.3d at 157. Therefore, Petitioner’s argument that he is
not subject to mandatory detention under 8 U.S.C.
§ 1226(c) because ICE did not take him into
custody immediately upon his release from incarceration for his removeable offense, must fail.
Id.
In addition, the Court observes that Petitioner does not assert a claim of unreasonably
prolonged detention in violation of the Due Process clause under Diop v. ICE/Homelan Sec.,
d
656
F.3d 221 (3d
cir. 2011) (finding that Diop’s nearly three-year detention was unconstitutionally
unreasonable and, therefore, a violation of due process). In Diop, the Third Circuit conclu
ded
that the mandatory detention statute,
§ 1226(c), implicitly authorizes detention for a reasonable
amount of time, after which the authorities must make an individualized inquiry into whethe
r
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. 656 F.3d
at 231.
Specifically, the Third Circuit found that the 35—month mandatory detention
of Diop was
unreasonable partly because the immigration judge had committed “numerous errors”
that caused
the BIA to remand the case three times. Id. at 224—26, 234—35.
Nevertheless, the Third Circuit has not set a “universal point” when mandatory detenti
on
under
§ 1226(c) is unreasonable. See Leslie v. Attorney Gen., 678 F.3d 265, 270—71 (3d Cir.
2012) (ultimately finding that Leslie’s four-year detention under
§ 1226(c) was unreasonable
because it had been prolonged by the alien’s successful appeals, and petitio
ner should not be
punished by continued detention for having pursued these “bona fide” legal
remedies).
In this case, Petitioner had been detained for one year when he filed his petitio
n. This
one-year time frame is far short of the lengthy detention period of 35
months found to be
unreasonable by the Third Circuit in Diop, and the four-year period of
detention found to be
6
th
unreasonable in Leslie. Petitioner’s merits hearing was scheduled for October 25 and an end
to
Petitioner’s pre-removal detention is likely forthcoming.
Moreover, much of the time that
Petitioner has spent in pre-removal, mandatory detention has been due to Petitioner’s
requests for
adjournments and not related to any appeals in which Petitioner has been successful.
See Section
1, supra. Accordingly, the Court dismisses this petition without prejudice to Petitioner bringin
ga
new and separate action under either Diop or Zadvydas v. Davis, 533 U.S. 678,
121 S.Ct. 2491,
150 L.Ed.2d 653 (2001) (holding that post-removal-period detention contain
s implicit
reasonableness limitation and that the presumptive limit for post-removal-period
detention is six
months) in the event the facts and circumstances of Petitioner’s custody and detenti
on by the ICE
should change in the future.
2
III. CONCLUSION
For the foregoing reasons, the Court denies Petitioner’s application for habeas
relief
pursuant to 28 U.S.C.
§ 2241. However, the denial is without prejudice to the filing of another §
2241 petition should Petitioner’s detention become unreasonable. An approp
riate Order follows.
Dated:
JOSE L. INARES
United States District Judge
2
The Court further notes that should a final order of removal be entered agains
t Petitioner, the
basis of his detention changes, and Petitioner would be subject to manda
tory detention under 8
U.S.C. § 1231 (a)(2), for a 90—day removal period. After the 90—day remov
al period expires, the
Government may continue to detain Petitioner pending removal or release
Petitioner under
supervision. 8 U.S.C. § 123 l(a)(6). However, this post-removal-period
detention provision
contains an implicit reasonableness limitation, which the Supreme
Court has held to be a
presumptive limit of six months. Zadvydas, 533 U.S. at 678.
7
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