NELSON v. AVILES et al

Filing 4

OPINION. Signed by Judge Claire C. Cecchi on 7/31/13. (jd, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CARLTON NELSON,
Petitioner,

Civil No.

13-3514

(CCC)

V.

OSCAR AVILES,

et al.,

OPINION

Respondents.

APPEARANCES:
Canton Nelson, Pro Se
A# 41 068—351
Hudson County Correctional Center
35 Hackensack Avenue
Kearny, NJ 07032

CECCHI, District Judge
Petitioner Carlton Nelson

(“Petitioner”),

an immigration

detainee 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 us continuing

detention without a bond heanirq. Oscar Aviles, Warden at the Hudson
County Correctional Center where Petitioner is in custody, is a named

1
respondent. Because it appears from a review of the parties
’
submissions that Petitioner is not entitled to the relief
he seeks
at this time,

the Court will dismiss the petition.

I. BACKGROUND

Petitioner is a native and citizen of Guyana, who has
resided
in the United States since 1987.

(Petition, ¶ 9,

16)

On or about

.

June 27, 1996, Petitioner was convicted of Conspiracy to Posses
s with
Intent to Distribute Cocaine,
offenses,

as well as other drug and weapons

in the United States District Court,

Florida (Pet., ¶ 16; ECF No. 1 at
p. 9 of 56)

.

Middle District of

He was also convicted

under Florida state criminal statutes for drug charges.

(Id.).

He

was sentenced on June 27, 1996 to a term of 168 months with
four years
of supervised release on the federal charges.

(Pet.,

¶ 18).

On or about February 12, 2013, on the final day of his superv
ised
release,

Petitioner was taken into custody by the U.S.

Department

of Homeland Security (“USDHS”), Immigration and Customs
Enforcement
(“ICE”),
Act

and detained pursuant to the Immigration and Nationality

(“INA”)

Section 236(c),

8 U.S.C.

§ 1226(c).

eettoner was served with a notice to Jppear (‘ni”;
I

,

coarging

Petitioner also has named 7aris remote federal officia
ls as
respondents. However, the only proper respondent to a habeas
petition
challenging current confinement is the warden of the facility
where
the prisoner is teing nelo. ccordngly, arhen Aviles
is the only
properly named respondent in this action, and the other
named
respondents shall ne dismssen trom tnis action
with prejudice. See
Rumsfeld v. Padilla, 542 U.S. 426 (2004); Yi v. Maugans,
24 F.3d 500
(3d Cir. 1994)

him with removability under INA Section 237 (a) (2) (A) (iii)
of an aggravated felony for drug trafficking),
(A) (iii)

Section 237 (a) (2)

(aggravated felony relating to conspiracy),

237 (a) (2) (C)

(convicted for weapons charge)

Pet., ECPN0. I at pp. 9-10 of 56).

.

(convicted

and Section

(Notice to Appear,

At the time he filed his petition,

petitioner stated that his immigration case was pending before an
Immigration Judge, with his next hearing scheduled for July 26, 2013
(Pet., ¶ 20).

As of the date of this Opinion, there are no additional

updates regarding the status of his immigration case.
Petitioner filed this habeas petition on or about June 5, 2013.
He contends that he is not subject to mandatory detention without
a bond hearing under 8 U.S.C.

§ 1226(c),

because he was not taken

into ICE custody when released from prison for a removable offense.
(Pet., ¶ 21), and because he is not a danger to the community (Pet.,
¶ 22)
II.

RELEVANT STATUTES

Federal law sets forth the authority of the Attorney General
to detain aliens in removal proceedings.

Title 8 U.S.C.

§ 1226(a)

provides the Attorney General with the authority to arrest, detain,
and release ar alien durinq the ore—removal—order period when the
decision as to whether the alien will be removed from the United
States is pending.
(a)

Arrest,

The statute provides,

detention,

arid 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
decision, 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
(B)

8 U.S.C.

conditional parole

§ 1226(a)

.

.

(emphasis added).

Certain criminal aliens,

however,

are subject to mandatory

detention pending the outcome of removal proceedings,
8 U.S.C.

§ 1226(c) (1),

pursuant to

which provides in relevant part that:

The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any
offense covered in section 1182 (a) (2) of this title,
(B) is deportable by reason of havinc corniritted any offense

when the alien is released, without reaard to whether the
alien is released on parole, supervisen release, or
arrested or imprisoned again for the same offense.
8 U.S.C.

§ 1226(c) (1).

Section 1226(c) (2)

criminal aliens only under very limited
4

permits release of

circumstances

not

relevant

here. In short, detention under § 1226(a) is discretionary and
permits release on bond, while detention under § 1226(c) is
mandatory.
Title 8 U.s.c. § 1231(a) governs “post-removal-order”
detentions. 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.
Removal can be delayed, for example, by the need to make
arrangements with the destination country. In addition, the removal
period can be restarted multiple times by various superseding events,
such as a new stay order or a detention on criminal charges. See Sayed
v. Holder, 2012 WL 458424 (D.N.J. Feb.9, 2012).

The United States

Supreme court has adopted a rule of thumb that a post-removal
detention of up to six months is reasonable, but that a bond hearing
may be required after that time.

See Zadvydas v. Davis,

5

533 U.S.

678

(2001)

III. ANALYSIS

A.

Jurisdiction

Under 28 U.S.C. § 2241(c), habeas jurisdiction “shall not extend
to a prisoner unless

...

[h]e is in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C.

§ 2241 (c) (3)

.

§ 2241(c) (3)

A federal court has subject matter jurisdiction under
if two requirements are satisfied:

is “in custody,” and

(2)

(1)

the petitioner

the custody is “in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C.

§ 2241(c) (3);
Accordingly,

see also Maleng v.

Cook,

490 U.S.

488,

490

(1989).

this Court has subject matter jurisdiction over the

petition under § 2241 because petitioner was detained within its
jurisdiction in the custody of ICE at the time he filed his petition.
See Spencer v.
B.

Kemna,

523 U.S.

1,

7

(1998).

Statutory Authority for Petitioner’s Detention

Petitioner argues that he should not be subject to mandatory
detention under Section 1226 (c) because ICE did not iwediately place
him into custody when he was released from prison on the allegedly
removable offense (Per., ¶1128, 29). Under 8 U.S.C. § 1226(c) (1) (5),
the Attorney Ceneral shall take into custody “any alien who

...

(B)

is dep ortable by reason of having committed any •oflense covered in
6

Section 1227 (a) (2) (A) (ii), (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 may be arrested or imprisoned again for
the same offense.” 8 U.S.C. § 1226(c) (1) (B).
However, on April 22, 2013, the Third Circuit resolved this
issue, reversing Sylvain v. Holder, 2011 WL 2580506 (D.N.J. June 28,
2011) on appeal, and holding that ICE does not lose its authority
to impose mandatory detention under 8 U.S.C. § 1226(c), even if the
Government has delayed in detaining the alien when the alien was
released from state or federal custody.

See Sylvain

t’-.

Attorney

General of United States, 714 F.3d 150, 157 (3d Cir. 2013). The Third
Circuit concluded:
Our holding rests on a simple observation: even if the
statute calls for detention “when the alien is released,”
and even if “when” implies some period of less than four
years, nothing in the statute suggests that officials lose
authority if they delay. With this holding, we neither
condone government indolence nor express approval for the
delay in this case. But as the Supreme Court has explained
in a related context, “[t]he end of exacting compliance
with the letter of [the statute] cannot justify the means
of exposing the public to an increased likelihood of
violent crime by persons on bail, an evil the statute aims
to prevent.” Montalvo—Murillo, 495 U.S. at 720.
Accordingly, we will reverse the District Court’s
j udgment.
Id. at 161.

The Third Circuit’s mandate in Sylvain definitively bars
7

Petitioner’s claim for habeas relief, which is based on the identical
argument rejected in Sylvain, and thus makes Petitioner ineligible
for a bond hearing under § 1226(a).
Moreover, as Petitioner only recently was taken into ICE custody
in February of 2013 and his immigration proceedings are ongoing,
Petitioner cannot assert a claim of unreasonably prolonged detention
in violation of the Due Process Clause under Diop
Sec., 656 F.3d 221 (3d Cir. 2011)

t’.

ICE/Homeland

(finding that Diop’s nearly three

year detention was unconstitutionally unreasonable and, therefore,
a violation of dueprocess). In Diop, the Third Circuit concluded
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 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.

See Diop, 656 F.3d

at 231. In this case, Petitioner’s mandatory detention is less than
six months, and he alleges no facts to show that his continued
detention is or will become unreasonably prolonged or indefinite.
Nor does Petitioner allege any factual basis for his claim that
his mandatory detention is not authorized under § 1226(c) because
of a substantial challenge to removal. He simply asserts without
elaboration that he is eligible for asylum, withholding, and
8

convention against torture.
Finally,

(Petition,

as discussed previously,

¶ 33.)
§ 1231(a)

directs the

Attorney General to remove aliens within ninety (90) days of the
entry
of a removal order.

8 U.S.C.

§ 1231(a) (1) (A).

commands that “[d]uring the removal period,
shall detain the alien”,

The statute then

the Attorney General

8 U.S.C. § 1231(a) (2), and with respect to

criminal recidivist aliens, specifically provides that, “[u]nd
er no
circumstance during the removal period shall the Attorney Genera
l
release an alien who has been found
1227(a) (2)

...

of this title.” 8 U.S.C.

At the end of the ninety
hold the alien,

...

(90)

deportable under section
§ 1231(a) (2).

day period,

ICE may continue to

or it may grant supervised release.

8 U.S.C.

§

1231 (a) (3) and (6). The discretion to detain an alien under
§ 1231 (a)
is limited by the Fifth Amendment’ s Due Process clause. See Zadvy
das,
533 U.S.

at 693—94.

In Zadvydas,

interpreted § 1231 (a) (6)
detention.

Id.

at 689.

the United States Supreme Court

to include “an implicit limitation” on

The Court determined that

read in light of the Constitution!s demands,

“[s

1231(a) (6)],

limits an alie&s

post-removal—period detention to a period reasonably necess
ary to
bring about that alien’ a removal from the United States. It
does not
oerrrt

deflte detetc

“

li

‘li or the sae of rlicro

administration in the federal courts,” the Court recognized
six (6)
months as a presumptively reasonable period of detention. Id.
at 701.
C)

In the instant case, post—removal order detention statues and
case law obviously does not apply to Petitioner because he is

currently in removal proceedings.

Since the removal period begins

on the “date the order of removal becomes administratively final,”
8 U.S.C. § 1231 (a) (1) (B) (i), Petitioner’s removal period has not yet

begun.
IV.

CONCLUSION
For the foregoing reasons,

the Court dismisses Petitioner’s

application for habeas relief pursuant to 28 U.S.C.

§ 2241.

An

appropriate Order follows.

/
-----

——

CLAIRE C. CECCHI
United States District Judge
Dated:

10