CRUZ v. HOLDER et al
Filing
2
OPINION. Signed by Judge Kevin McNulty on 9/19/2014. (nr, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ABEL GONZALEZ CRUZ,
Petitioner,
Civ. No. 14-5529 (KM)
OPINION
V.
ERIC HOLDER, Jr., et al.,
Respondents.
KEVIN MCNULTY, U.S.D.J.
I.
INTRODUCTION
The petitioner, Abel Gonzalez Cruz, is an immigration detainee at the
Essex County Correctional Facility in Newark, New Jersey. He is proceeding pro
se with a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. For
the following reasons, the habeas petition will be dismissed without prejudice.
II.
BACKGROUND
The Court received Mr. Cruz’s habeas petition on September 3, 2014. Mr.
Cruz states that he has been in immigration detention since October 4, 2013,
without having received either an order of deportation or of release. He adds
that, on July 7, 2014, the Immigration Judge told him in substance that the
matter was ripe for decision. His continued immigration detention, he claims,
is not authorized or constitutional, and he requests that he be released under
an order of supervision.
III.
LEGAL STANDARDS: SUA SPONTE DISMISSAL
With respect to screening a habeas petition, 28 U.S.C.
§ 2243 provides as
follows:
A court, justice or judge entertaining an application for
a writ of habeas corpus shall forthwith award the writ
or issue an order directing the respondent to show
cause why the writ should not be granted, unless it
appears from the application that the applicant or
person detained is not entitled thereto.
Because Mr. Cruz is proceeding pro Se, his petition will be held to less stringent
standards than those governing pleadings drafted by lawyers. See Rainey v.
Varner, 603 F.3d 189, 198 (3d Cir. 2010) (“It is the policy of the courts to give a
liberal construction to pro se habeas petitions.”) (internal quotation marks and
citation omitted); United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007) (“we
construe pro se pleadings liberally.”) (citing Haines v. Kemer, 404 U.S. 519,
520 (1972)). Nevertheless, “a district court is authorized to dismiss a [habeas]
petition summarily when it plainly appears from the face of the petition and
any exhibits annexed to it that the petitioner is not entitled to relief in the
district court[.]” Lonchar v. Thomas, 517 U.S. 314, 320 (1996).
IV.
LEGAL STANDARDS: IMMIGRATION DETENTION
The Attorney General has the authority to detain aliens in removal
proceedings both before and after the issuance of a final order of removal.
Those two situations— “pre—removal” and “post-removal” detention—are
governed by separate standards.
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A. Pre-Removal Detention
Detention of an alien before an order of removal has been entered is
governed by Section 1226 of Title 8 of the United States Code. Section 1226(a)
permits the Attorney General to detain or release an alien pending a decision
on whether the alien is to be removed from the United States:
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;
(B) conditional parole;
—
.
8 U.S.C.
§ 1226(a). “Except as provided in subsection (c)” is included because,
under Section 1226(c), certain criminal aliens are subject to mandatory pre
removal detention:
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)(A)(i) of this
title on the basis of an offense for which the alien
has been sentence to a term of imprisonment of at
least 1 year, or
(D)is inadmissible under section 1 182(a)(3)(B) of this
title or deportable under section 1227(a)(4)(B) of
this title,
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when the alien is released, without regard to whether
the alien is release 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).
In Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011), the United
States Court of Appeals for the Third Circuit established a framework for
analyzing the permissibility of pre-removal detention:
[Title 8, United States Code, Section] 1226(c) contains
an implicit limitation on reasonableness: the statute
authorizes only mandatory detention that is
reasonable in length. After that, § 1226(c) yields to the
constitutional requirement that there be a further,
individualized, inquiry into whether continued
detention is necessary to carry out the statute’s
Should the length of [an alien’s] detention
purpose.
become unreasonable, the Government must justifr its
continued authority to detain him at a hearing at
which it bears the burden of proof.
.
.
.
656 F.3d at 235. Diop did not establish a specific time limit for pre-removal
detention, beyond which petitioner would be entitled to a hearing. See id. at
*3 (D.N.J. Jan.
234; see also Carter v. Aviles, No. 13-3607, 2014 WL 348257, at
30, 2014) (“[T]he Third Circuit has not set a Luniversal point’ when mandatory
detention under § 1226(c) is unreasonable.”) (citing Leslie v. Attorney Gen., 678
F.3d 265, 270-7 1 (3d Cir. 2012)); Barcelona v. Napolitano, No. 12-7494, 2013
WL 6188478, at *1 (D.N.J. Nov. 26, 2013) (“The Court of Appeals in Diop
declined to adopt a rule that a hearing was required after a certain fixed
amount of time in pre-removal detention.”) (citation omitted). Instead, the
Third Circuit noted that “[r]easonableness, by its very nature, is a fact4
dependent inquiry requiring an assessment of all of the circumstances of a
particular case,” and that a 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.” Diop, 656 F.3d at 234. “A court will consider,
for example, the extent to which delays were attributable to the detainee’s
requests for adjournments, or alternatively to the immigration judge’s errors or
the government’s sluggishness in obtaining evidence.” Wilson v. Hendricks, No.
12-7315, 2013 WL 324743, at *2 (D.N.J. Jan. 25, 2013) (citing Diop, 656 F.3d
at 234); see also Barcelona, 2013 WL 6188478, at *1.
B. Post-Removal Detention
After a removal order has been entered, detention is governed by Section
123 1(a) of Title 8, United States Code. Section 123 1(a)(1)(A) provides that,
“except as otherwise provided in this section, when an alien is ordered
removed, the Attorney General shall remove the alien from the United States
within a period of 90 days (in this section referred to as the ‘removal period’).”
8 U.S.C.
§ 1231(a)(1)(A). The removal period begins on the latest of the
following:
(i)
(ii)
(iii)
The date the order of removal becomes
administratively final.
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.
If the alien is detained or confined (except under
an immigration process), the date the alien is
released from detention or confinement.
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Id.
§ 123 1(a)(1)(B). Implementing regulations determine when an order of
removal becomes “administratively final”:
An order of removal made by the immigration judge at
the conclusion of the proceedings under section 240 of
the Act shall become final:
(a) Upon dismissal of an appeal by the Board of
Immigration Appeals;
(b) Upon waiver of appeal by the respondent;
(c) Upon expiration of the time allotted for an appeal if
the respondent does not file an appeal within that
time;
(d) If certified to the Board or Attorney General, upon
the date of the subsequent decision ordering
removal; or
(e) If an immigration judge issues an alternate order of
removal in connection with a grant of voluntary
departure, upon overstay of the voluntary
departure period, or upon the failure to post a
required voluntary department bond within 5
business days. If the respondent has filed a timely
appeal with the Board, the order shall become final
upon an order of removal by the Board or the
Attorney General, or upon overstay of the voluntary
departure period granted or reinstated by the Board
or the Attorney General.
8 C. F. R. § 1241.1(a). By statute, the alien must be detained during the ninety
day post-removal order period. See 8 U.S.C. § 123 1(a)(2). However, if the alien
is not removed during the ninety-day period, then Section 123 1(a)(6) authorizes
release on bond or continued detention, as appropriate:
An alien ordered removed who is inadmissible under
section 1982 of this title, under section 1227(a)(1)(C),
1227(a)(2), or 1227(a)(4) of this title or who has been
determined by the Attorney General to be a risk to the
community or unlikely to comply with the order of
removal, may be detained beyond the removal period
and, if released, shall be subject to the terms of
supervision in paragraph (3).
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8 U.S.C.
§ 1231(a)(6).
In Zadvydas v. Davis, 533 U.S. 678 (2001), the United States Supreme
Court held that Section 123 1(a)(6) does not authorize the Attorney General to
detain aliens indefinitely beyond the removal period, but “limits an alien’s postremoval-period detention to a period reasonably necessary to bring about that
alien’s removal from the United States. It does not permit indefinite detention.”
533 U.S. at 689. Six months is a presumptively reasonable period of postremoval detention under Section 1231(a)(6). 533 U.S. at 701. In addition, to
state a habeas claim, the petition must allege facts showing good reason to
believe that there is no reasonable likelihood of the alien’s actual removal in
the reasonably foreseeable future. See id. The lengthier the detention, however,
the greater the justification must be. “Zadvydas does not delineate the
boundaries of evidentiary sufficiency, but it suggests that an inversely
proportional relationship is at play: the longer an alien is detained, the less he
must put forward to obtain relief.” Alexander v. Attorney Gen. of United States,
495 F. App’x 274, 276-77 (3d Cir. 2012) (per curiam, not precedential) (citation
omitted).
V. ANALYSIS
Mr. Cruz challenges his continued immigration detention. As he makes
clear in his habeas petition, however, the Immigration Judge has yet to order
his removal; he is in “pre-removal” detention. His invocation of Zadvydas,
which governs post-removal detention, is therefore incorrect, or at least
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premature. I will analyze Mr. Cruz’s detention under the pre-removal regime
established in Diop. See Section IV.A, supra.
Mr. Cruz has been in immigration detention since October 4, 2013—a
lengthy period, to be sure, but less than one year. For guidance, I consider
cases analyzing the permissibility of periods of pre-removal detention in that
one-year range. District Judge Salas surveyed some of these cases earlier this
year in Skinner u. Bigott, No. 13-4299, 2014 WL 70066, at *4 (D.N.J. Jan. 8,
2014):
For example, a detainee’s one-year detention period
was recently found not unreasonable under Diop. [See]
Dilone v. Shanahan, No. 12-7894, 2013 WL 5604345,
at *4 (D.N.J. Oct. 11, 2013). In another case, the
detention was found unreasonable where, “[alt the
time of th[eJ Opinion, [the petitioner] will have been
held in mandatory detention, without any bond
hearing, for more than one year.” See Francois v.
Napolitano, No. 12-2806, 2013 WL 4510004, at *4
(D.N.J. Aug. 23, 2013). Conversely, a detention period
of two years was found not to violate due process,
Gonzalez v. Aviles, No. 13-34 13, 2013 WL 5467114, at
*3 (D.N.J. Sept. 30, 2013), as was a period of eighteen
months[.] [S]ee Sessay v. Hendricks, No. 12-2667,
2013 WL 4537709, at *4 (D.N.J. Aug. 27, 2013).
Another court in this Circuit noted that, “[w]hile period of detention which
significantly exceeds one year may trigger constitutional concerns.
.
.
detention
periods of up to two years have been sustained by the courts where a criminal
alien is subject to mandatory detention and much of the pre-removal delay is a
function of that criminal alien’s litigation decisions during removal
proceedings.” Ryan v. Decker, No. 13-682, 2013 WL 3973074, at *5 (M.D. Pa.
July 31, 2013) (internal citations omitted). These varying results, as well as the
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analysis in these cases, indicate that the reasonableness inquiry takes into
account all the circumstances of the case, not just the length of pre-removal
detention.
Mr. Cruz’s continued immigration detention for nearly a year, without a
final order of removal concerns me; if it continues much longer, I may be
compelled to find it unreasonable, unless the government comes forward with a
substantial justification. At this time, however, his pre-removal detention has
not yet reached the level of unreasonableness under Diop. Accord Dubois v.
Holder, No. 14-0358, 2014 WL 674023, at *5 (D.N.J. Feb. 20, 2014) (holding
that petitioner’s pre-removal order immigration detention period of eleven
months was not unreasonable under Diop); Dilone, 2013 WL 5604345, at *4
(D.N.J. Oct. 11, 2013) (one-year pre-removal immigration detention period not
unreasonable under Diop). The length of detention aside, my decision reflects
the statement in the petition that, on July 7, 2014, the Immigration Judge told
Mr. Cruz that he would be making a decision on his case. That was just over
two months ago. I presume that an order from the Immigration Judge, either
releasing Mr. Cruz or removing him from the United States, will be forthcoming
in the near future.
Accordingly, the habeas petition will be dismissed. That dismissal,
however, is without prejudice to another application, should Mr. Cruz’s pre
removal detention continue for a substantial additional period of time.
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V.
CONCLUSION
For the foregoing reasons, the habeas petition is dismissed without
prejudice. An appropriate order will be entered.
Dated: September 19, 2014
KEVIN MCNULTY
United States District Judge
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