WILLIAMS v. AVILES et al
Filing
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OPINION fld. Signed by Judge Claire C. Cecchi on 4/30/14. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHADD WILLIAMS,
:
Hon. Claire C. Cecchi
Petitioner,
:
Civil No. 14-831 (CCC)
v.
:
OPINION
OSCAR AVILES, et al.,
Respondents.
CECCHI, District Judge
Petitioner Chadd Williams, an immigration detainee confined at the Hudson County
Correctional Center in Keamy, New Jersey, has submitted a petition for a writ of habeas coipus
pursuant to 28 U.S.C.
§ 2241,1 challenging his mandatory detention during his immigration
removal proceedings. Petitioner names as respondents: Oscar Aviles, Scott A. Weber, John T.
Morton, Janet Napolitano, and Eric Holder. Because it appears from review of the Petition that
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Petitioner is not entitled to the relief he seeks at this time, the Court will deny the petition
without prejudice. Petitioner’s application to proceed without payment will be granted.
1 Section 224 I provides in relevant part: “(a) Writs of habeas corpus may be granted by the Supreme Court, any
(c) The writ of habeas
justice thereof, the district courts and any circuit judge within their respective jurisdictions
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.” Rumsfeld v, Padilla, 542
U.S. 426,435 (2004).
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I
I.
BACKGROUND
Petitioner is a native of Jamaica, who, at the time of filing the petition, had been detained
for twenty months while awaiting the resolution of his removal proceedings. Petitioner had
been a Legal Pen-nanent Resident of the United States since February 13, 2006. On September
13, 2007, he was taken into criminal custody for a removable offense. He was convicted and
released with time served on October 17, 2008. He was taken into custody by U.S. Immigration
and Customs Enforcement (“ICE”) on May 16, 2012. Petitioner now flies 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
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(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 mandator detention pending the outcome of
removal proceedings, pursuant to 8 U.S.C.
§ 1226(c)(1), 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
11 82(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[dj 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 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.
§ 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)(l)(B). “An order or removal made by the immigration judge at the
conclusion of proceedings.
.
.
shall become final.. [u]pon 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.
§ 123 1(a)(2). Section 123 l(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 Zadvvdas 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 subsequent 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)(1)(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 “[ejven if[8 U.S.C.
1226(c)] calls for detention when the alien is released,’ and even if when’ implies something
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§
less than four years, nothing in the statute suggests that immigration officials lose authority if
they delay. See Svlvain. 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,
§ 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. 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 he
punished by continued detention for having pursued these “bona fide’ legal remedies).
In this case, the time frame in which Petitioner has been detained falls short of the
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 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 Zadvvdas (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
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change in the future.
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. An appropriate Order
follows.
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(-—___-
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 S U.S.C. 123 I(a)(2). for a 90-day
removal period. After the 90-day removal period expires. the Government may continue to detain Petitioner
pending removal or release Petitioner under supervision. S U.S.C. 123 1(a)(6). However, this post-removalperiod detention provision contains an implicit reasonableness limitation, which the Supreme Court has held to be a
presumptive limit of six months. Zadvvdas, 533 U.S. at 678.
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