NELSON v. AVILES et al

Filing 3

OPINION. Signed by Judge Claire C. Cecchi on 1/30/2014. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

:

Hon. Claire C. Cecchi

Petitioner,

:

Civil No, 13-4558 (CCC)

v.

:

OPINION

CARLTON NELSON,

OSCAR AVILES, et al.,
Respondents.

CECCHI, District Judge
Petitioner Canton Nelson, an immigration detainee 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. Petitioner names as respondents: Oscar Aviles, Christopher Shanahan,
Scott A. Weber, John T. Morton, Janet Napolitano, and Eric Holder. Because it appears from
2
review of the Petition that Petitioner is not entitled to the relief he seeks at this time, the Court
will deny the petition without prejudice.
I.

BACKGROUND

I 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...,”
2 All Respondents other than Oscar Aviles shall be dismissed because “in habeas challenges to
present physical confinement ‘core challenges’ the default rule is that the proper respondent is
the warden of the facility where the prisoner is being held, not the Attorney General or some
other remote supervisory official,” Rumsjfèld v. Fadilla, 542 U.S. 426, 435 (2004).
...

-

-

1

Petitioner is a native of Guyana who, at the time of filing the petition, had been detained
for approximately five months awaiting the resolution of his removal proceedings. Petitioner
came to the United States as a Lawful Permanent Resident in 1987. He received a criminal
conviction on June 27, 1996 and was sentenced to 168 months of incarceration. He served 156
months of incarceration with four years of supervised probation. He was subsequently taken
into custody by U.S. Immigration and Customs Enforcement (“ICE”) on February 12, 2013, the
final day of his supervised probation. Petitioner now files this petition challenging his ongoing
mandatory detention because he was not taken into immigration custody immediately upon
release from criminal incarceration related to a removable offense.
II.

DISCUSSION
a. Legal Standard

Federal law sets forth the authority of the Attorney General to detain aliens in removal
proceedings, both before and afier issuance of a final order of removal. Title 8 U.S.C.

§ 1226

governs pre-removal-order detention of an alien. Section 1226(c) 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 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) conditional parole;.
8 U.S.C.

§ 1226(a).

Certain criminal aliens, however, are subject to mandatory detention pending the outcome 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
1 182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in Section
1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(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 1 l82(a)(3)(B) of this title or deportable under section
1227(a)(4)(B) of this title or deportable under section l227(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.

§ l226(c)(1).

“Post-removal order” detention is governed by 8 U.S.C.

§ 123 1(a). Section 123 1(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 immigration process), the date the
alien is released from detention or confinement.
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8 U.S.C.

§ 123 1(a)(1)(B). “An order or removal made by the immigration judge at the

conclusion of proceedings

...

shall become final

of Immigration Appeals.” 8 C.F.R.

..

[ujpon dismissal of an appeal by the Board

§ 1241.1(a). During the removal period, “the Attorney

General shall detain the alien,” 8 U.S.C.

§ 123 1(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 detention
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).
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 completion of his criminal
sentence for a removable offense.
As set forth above, an alien is subject to mandatory detention and subsequently removal
or deportation from the United States when he/she:
is deportable by reason of having committed any offense covered in section
1227(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 may be arrested or imprisoned again for the same
offense.
8 U.S.C.

§

1226(c)(l)(B).

The Third Circuit Court of Appeals recently addressed this issue in Sylvain v. Attorney

Gen. of US., 714 F.3d 150 (3d Cir. 2013). In that case, the court held that “[e]ven if[8 U.S.C.
1226(c)] calls for detention ‘when the alien is released,’ and even if ‘when’ implies something
4

§

less than four years, nothing in the statute suggests that immigration officials lose authority if
they delay. See Sylvain, 714 F.3d at 157. Therefore, the argument that Petitioner 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 removable offense, must fail. See 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/Homeland Sec.,
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 concluded that the mandatory detention statute,

§

122 6(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. 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 detention
under

§

1226(c) is unreasonable. See Leslie v. Attorney Gen., 678 F.3d 265, 270-7 1 (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 petitioner should not be
punished by continued detention for having pursued these “bona fide” legal remedies).
In this case, at the time that this opinion is written, the time frame in which Petitioner has

been detained is far short of the lengthy detention period of 35 months which was found to be

unreasonable by the Third Circuit in Diop, and the four-year period of detention found to be
unreasonable in Leslie, Petitioner here has not shown that his mandatory detention until this
time is a violation of the Due Process Clause, Accordingly, the Court dismisses the petition
without prejudice to Petitioner bringing a new and separate action under either Diop or Zathydas
(holding that post-removal-period detention is six months) in the event that the facts and
circumstances of Petitioner’s custody and detention by ICE should change in the future.
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III.

CONCLUSION
For the foregoing reasons, the Court denies Petitioner’s application for habeas relief

pursuant to 28 U.S.C.

§ 2241. However, denial is without prejudice to the filing of another §

2241 petition should Petitioner’s detention become unreasonable. Petitioner’s application for
pro bono counsel is denied as moot at this time. An appropriate Order follows.

Hon. Claire C. Ceechi, U.S.D.J.

3 The Court further notes that should a final order of removal be entered against Petitioner, the
basis of his detention changes, and Petitioner would be subject to mandatory detention under 8
U.S.C. § 123 1(a)(2), for a 90-day removal period. Afier the 90-day removal period expires, the
Government may continue to detain Petitioner pending removal or release Petitioner under
supervision. 8 U.S.C. § 123 1(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.

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