MICHAEL v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY et al
Filing
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OPINION. Signed by Judge Kevin McNulty on 12/9/2014. (nr, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BRIAN HENDERSON MICHAEL,
:
v.
Civ. No. 14-7429 (KM)
:
Petitioner,
OPINION
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, et al.,
Respondents.
KEVIN MCNULTY, U.S.D.J.
I.
INTRODUCTION
The petitioner, Brian Henderson Michael, is an immigration detainee at the Hudson
County Correctional Facility in Kearny, New Jersey. He is proceeding through counsel 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. Michael’s habeas petition on November 24, 2014. He states that
he was placed in immigration detention on April 21, 2014, after he completed a state criminal
sentence for aggravated assault. He remains in immigration detention while his application for
cancellation of removal and for asylum have been pending. His final immigration hearing was
scheduled for November 24, 2014. Citing Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir.
2011), he claims that his current immigration detention has exceeded a “reasonable period of
time.” He requests an immediate bond hearing to determine whether his continued immigration
detention is justified.
III.
LEGAL STANI)ARD: SUA SPONTE DISMISSAL
With respect to screening the instant petition, 28 U.S.C.
§ 2243 provides in relevant part:
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.
“[Al 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 STANDARD: IMMIGRATION DETENTION
The Attorney General has the authority to detain aliens in removal proceedings before the
issuance of a final order of removal, or during the “pre-removal” period. 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-rernoval detention:
Thc Attorney Ccncral shall takc into custody any alien who
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—
(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 11 82(a)(3)(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
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, 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 purpose.
Should the length
of [an alien’s] detention become unreasonable, the Government
must justify 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 state a specific length of pre-removal-order detention, beyond
which petitioner would be entitled to a hearing. See id. at 234; see also Carter v. Aviles, No. 133607, 2014 WL 348257, at *3 (D.N.J. Jan. 30, 2014) (“[T]he Third Circuit has not set a
‘universal 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 ruic that a hearing wa required after a certain fixed amount uftimc
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iii
pre-icmoval
detention.”) (citation omitted). Instead, the Third Circuit noted that “{r]easonableness, by its very
nature, is a fact-dependent inquiry requiring an assessment of all of the circumstances of a
particular case.” Diop, 656 F.3d at 234. 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.” Id. “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.
V.
ANALYSIS
Mr. Michael has been in immigration detention since April 21, 2014, a period of
approximately seven-and-one-half months. For guidance, I consider cases that apply J)iop.
analyzing the permissibility of periods of pre-removal detention for periods in the range of one
year. District Judge Salas recently surveyed some of those cases:
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[e] 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. 13-3413, 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).
Skinner v. Bigot!, No. 13-4299, 2014 WL 70066, at *4 (D.N..J. Jan. 8, 2014).
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Another district court in this Circuit noted that “[w]hile periods of detention which
significantly exceed 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 cases confirm that the reasonableness
inquiry takes into account, not just the length of the pre-removal detention, but all of the
surrounding circumstances.
I hold that Mr. Michael’s continued immigration detention for seven-and-one-half
months has not yet reached the level of unreasonableness under Diop. Accord Cruz v. Holder,
No. 14-5529, 2014 WL 4678039, at *4 (D.N.J. Sept. 19, 2014) (holding that petitioner’s pre
removal immigration detention period of approaching one year was not unreasonable under
Diop);
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). Some portion of that
period is no doubt attributable to Mr. Michael’s decision to challenge removal; his application
for cancellation of removal and for asylum are pending. Mr. Michael admits that his final
immigration hearing was scheduled, but adjourned for two months at his own request.
The length of detention aside, it appears as if Mr. Michael’s immigration proceedings are
nearing completion (if they have not done so already). Ilis petition states that the adjourned date
of his final immigration hearing before the Immigration .Judge was November 24, 2014.
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Based on all of these circumstances, the habeas petition will be dismissed. This dismissal,
however, will be without prejudice to another application, should Mr. Michael’s pre-removal
detention continue for an additional substantial period of time.
VI.
CONCLUSION
For the foregoing reasons, the habeas petition is dismissed without prejudice. An
appropriate order will be entered.
/
DATED: December 9, 2014
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KEVIN MCNULTY
United States District Judge
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