Williams v. Holder et al

Filing 42

OPINION. Signed by Judge Esther Salas on 5/25/2016. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

________________________
:
CHADD CHRISTOPHER WILLIAMS, :
:
Petitioner,
:
:
v.
:
:
OSCAR AVILES,
:
:
Respondents.
:

Civil Action No. 14-6463 (ES)

OPINION

________________________:
SALAS, DISTRICT JUDGE
Petitioner Chadd Christopher Williams (“Petitioner”) is currently being detained by the
Department of Homeland Security, Immigration and Customs Enforcement (“DHS/ICE”) at the
Hudson County Correctional Facility in Kearney, New Jersey, pending his removal from the
United States. On October 10, 2014, Petitioner filed the instant Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2241, in which he challenges his detention pending removal. (D.E. No.
1, Petition (“Pet.”)). For the reasons stated below, this Court will deny the Petition.
I.

BACKGROUND
Petitioner is in pre-removal mandatory detention subject to 8 U.S.C. § 1226(c). Petitioner

is a citizen and native of Jamaica who was admitted to the United States as a Legal Permanent
Resident (“LPR”) on or about February 13, 2006. (D.E. No. 1, Petition, at 2). Petitioner was
detained by ICE on May 16, 2012, after his release from prison on an unrelated matter. Petitioner
was then ordered removed on October 10, 2013. (D.E. No. 15-1 ¶ 28). Petitioner then moved to
have his final order of removal reopened by the Board of Immigration Appeals (“BIA”), which

was granted on December 4, 2014. (Id.) On November 16, 2015, Petitioner was finally afforded
a bond hearing pursuant to Lora v. Shanahan, 2015 WL 649951, at *12 (2d Cir. 2015), after eleven
months of detention after the BIA reopened Petitioner’s final order of removal. (D.E. No. 32 at
1). At the bond hearing, Immigration Judge Gabriel C. Videla denied Petitioner’s request for a
release on bond due because he deemed Petitioner both a “danger to the community” and a “flight
risk.” (D.E. No. 38 at 1). Petitioner, in a letter brief filed with the Court on December 11, 2015,
asked the Court to conduct its own review of Petitioner’s detention and Judge Videla’s hearing
was “legally flawed.” (D.E. No. 36 at 1). In response, Respondents ask the Court to dismiss the
petition as moot. (D.E. No. 38).
For the reasons that follow, Petitioner’s petition will be denied as moot.
II.

DISCUSSION
Under 28 U.S.C. § 2241(c), habeas relief “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). A federal court has subject matter jurisdiction under § 2241(c)(3) if two requirements
are satisfied: (1) the petitioner is “in custody,” and (2) the custody is alleged to be “in violation of
the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook,
490 U.S. 488, 490 (1989).
This Court has subject matter jurisdiction over this Petition under § 2241 because Petitioner
was detained within its jurisdiction, by a custodian within its jurisdiction, at the time he filed his
Petition, and because Petitioner asserts that his detention is not statutorily authorized.

See

Spencer v. Lemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494–
95, 500 (1973); Zadvydas v. Davis, 533 U.S. 678, 689 (2001).

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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 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)(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
1182(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,
8 U.S.C. § 1226(c)(1).

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Here, Petitioner was convicted of robbery in the third degree as well as possession of
cocaine. Both of Petitioner’s convictions qualify him for deportation pursuant to 8 U.S.C.

§

1226(c)(1)(B). 1
The Third Circuit held in Chavez-Alvarez that § 1226(c) does not authorize the Attorney
General to detain aliens indefinitely without a bond hearing, but that “sometime after” six-months,
“the burdens to [the detainees] liberties outweigh[] any justification for using presumptions to
detain him without bond to further the goals of the statute.” 783 F.3d 469, 478 (3d Cir. 2015).
Petitioner here presents an issue beyond the availability of a bond hearing required by ChavezAlvarez. Here, Petitioner is asking the Court to hold its own bond hearing in place of the hearing
held by IJ Videla. (See D.E. No. 1). Petitioner urges the Court to adopt the reasoning of either
the Ninth Circuit, which reviews individualized bond hearings when a due process violation is
alleged, or the Middle District of Pennsylvania, which reviews individualized bond hearings on
the merits and sets conditions of release. (See D.E. No. 39). This the Court will not do.
The Ninth Circuit holds that federal habeas courts can assert jurisdiction after a bond
hearing has taken place if there was a procedural due process violation in the bond hearing. See
Singh v. Holder, 638 F.3d 1196, 1205-09 (9th Cir. 2011) (holding that federal habeas courts may
assert jurisdiction over bond hearings if certain due process requirements were not met, namely,
the use of a clear and convincing evidence standard, notice and an opportunity to be heard, and the
providing-for of a contemporaneous record of the hearing) (relying on Mathews v. Eldridge, 424
U.S. 319 (1976) & Addington v. Texas, 441 U.S. 418 (1979)).

1

An alien is removable under 8 U.S.C. § 1227(a)(2)(B) for being convicted of possession of a
controlled substance and under 8 U.S.C. § 1227(a)(2)(A)(ii) for being convicted of an aggravated
felony such as robbery.
4

The Middle District of Pennsylvania goes even further, holding that it is “empowered to
conduct bail proceedings in habeas corpus proceedings brought by immigration detainees,” that it
is not necessary to “defer to the decision of the Immigration Judge,” and that such a decision is not
solely appealable to the BIA. Leslie v. Holder, 865 F.Supp.2d 627, 633 (M.D. Pa. 2012)
(conducting a highly-individualized review of a bond hearing, on the merits, and siding with
petitioner); see also Deptula v. Lynch, 2016 WL 98152, at *3 (M.D. Pa. Jan. 8, 2016) (recognizing
an “independent responsibility … to determine whether conditions of release may be set” after an
IJ denies release at a bond hearing) (internal citations omitted).
The District of New Jersey, thus far, has not explicitly adopted either method favored by
Petitioner. The present petition might be liberally construed as containing a claim that the IJ erred
in either finding Petitioner to be a flight risk or finding him to be a danger to the community. The
Court, however, in keeping with other courts in this District, does not have jurisdiction over
discretionary agency decisions. See Reeves v. Johnson, 2015 WL 1383942, at *3 (D.N.J. Mar. 24,
2015) (citing Pisciotta v. Ashcroft, 311 F.Supp.2d 445, 454 (D.N.J. Jan.9, 2004)). After a bond
hearing, the IJ might deny release on bond; the Court would not have the power to overrule such
a denial after a bona fide hearing. Pena v. Davies, 2016 WL 74410, at *2 (D.N.J. Jan. 6, 2016)
(internal citations and quotations omitted).
However, it must be noted that, even if the Court were to adopt one of the methods
suggested by Petitioner, i.e., either the process of individualized review for the purpose of setting
conditions favored by the Middle District of Pennsylvania, or the assertion of jurisdiction to review
alleged due process violations favored by the Ninth Circuit, the petition would still be ripe for
dismissal. Here, after a thorough review of the transcript, the Court is comfortable concluding that
Petitioner did in fact receive a bona fide bond hearing that both comported with Petitioner’s due
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process rights and is defensible on the merits. Though the hearing did not have the result Petitioner
wanted, there is nothing in the transcript to suggest that IJ Videla acted in any way improperly or
used the incorrect standard of proof in issuing his decision.
Petitioner asserts that IJ Videla incorrectly weighed the evidence against Petitioner, and
thus erred in denying his release. The transcript, however, provides no evidence for this assertion.
(See D.E. No. 34-9 at 62) (“But even though the Government has the burden of proof to establish
by clear and convincing evidence [Petitioner is] either a flight risk or a danger to the community,
I have to find, though, during the evidence presented, the Government has [met its burden.]”).
IJ Videla proceeded to conclude that, on the basis of Petitioner’s 2012 conviction for robbery in
the third degree, and Petitioner’s three disciplinary infractions in detention, that he is a danger to
the community. (Id. at 62-63). Reasonable minds can certainly disagree as to whether or not the
government met its standard here, and thus whether IJ Videla erred in denying Petitioner’s bond
request, but there is no indication that Petitioner’s due process rights were violated or that he
received anything less than a bona fide bond hearing.
Petitioner makes much of the fact that IJ Videla concluded that he did not have the authority
to order a conditional release, something that District Courts do in the Middle District of
Pennsylvania. See Leslie, 865 F.Supp.2d at 633-34; Deptula, 2016 WL 98152, at *3. This is not
an approach used in the District of New Jersey, and whether all judges have such authority is a
question of law that remains open in this Circuit. Thus, because whether IJ Videla had the authority
to set conditions upon Petitioner’s release is an open question of law, there can be no “mistake of
law” on which to hang a habeas petition.

6

Therefore, because the Court does not adopt Petitioner’s preferred standard of review,
opting instead to follow the other courts in this District in holding that the Court does not have the
jurisdiction to review Petitioner’s bona fide bond hearing, Petitioner’s petition is denied.
IV. CONCLUSION
For the reasons set forth above, the Petition will be denied without prejudice.

An

appropriate order follows.

s/Esther Salas
Salas, U.S.D.J.

7

Esther