JONES v. AVILES

Filing 10

MEMORANDUM OPINION. Signed by Judge Madeline C. Arleo on 7/20/2016. (nr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
OMAR RENRICK JONES,

Civil Action No. 15-4819 (MCA)

Petitioner,
v.

MEMORANDUM OPINION

OSCAR AVILES,
Respondent.

This matter having been opened to the Court by Petitioner Omar Renrick Jones’ filing of
a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C.

§ 2241

challenging the lawfulness

of his immigration detention. (ECF No. 1.) For the reasons explained below, the Court will deny
without prejudice the Petition at this time.
Petitioner, a detainee at Hudson County Correctional Center, has been in the custody of
Immigration and Customs Enforcement (“ICE”) since December 20, 2013. (Id, Pet. at 11; ECF
No. 6, Res. Br. at 1.) He filed the instant Petition on June 29, 2015. (ECF No. 1.) On July 8,
2015, the Court screened the Petition for dismissal, and ordered Respondents to file a full
Answer within 45 days. (ECF No. 2.) On August 19, 2015, United States Attorney David E.
Dauenheirner, Deputy Chief of the Civil Division, wrote to the Court to request a 32 day
extension of time to respond to the Petition. Mr. Dauenheimer provided the following reason for
the extension:
Undersigned counsel has secured documentation from DHS and is
seeking additional relevant documents at this time. Additionally,
counsel has been informed that Petitioner’s immigration
proceedings have been completed and a written decision by the
Immigration Judge is scheduled to be entered on September 22,

2015. Given the above, Counsel respectfully requests a 32 day
extension of time to respond, until September 25, 2015. Counsel
expects this extension will provide sufficient time to secure the
Immigration Judge’s ruling which will either moot this petition or
significantly aid in the determination of the reasonableness of
Petitioner’s continued detention.
(ECF No. 4.) The Court granted the extension of time. (ECF No. 5.) The following day,
however, Respondent filed the Answer. (ECF No. 6.) The thirteen page brief accompanying
Respondent’s Answer contended that Petitioner is “lawfully detained pursuant to 8 U.S.C.

§

1226(c)” and that his release was not required by the Third Circuit’s Recent decision in ChavezAlvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir. 2015). (ECF No. 1.)
The Court then ordered Respondent to (1) provide a status update to the Court addressing
whether the hearing took place and attaching any written decisions and (2) provide supplemental
briefing explaining how the hearing decision and the bona fides of Petitioner’s current challenges
to his removal affect the reasonableness of Petitioner’s continued detention under ChavezAlvarez. (ECF No. 7.) The Court also required Respondent to provide supplemental briefing
regarding whether Petitioner, who is litigating his removal proceedings in New York, had
received a bond hearing pursuant to the Second Circuit’s decision in Lora v. Shanahan, 804 F.3d
601 (2d Cir. 2015), as such a hearing would moot the need for same relief in this proceeding.
(Id.)
On February 3, 2016, Respondent filed a letter and accompanying exhibits with the
Court. The letter states in relevant part:
As the Court is aware, Petitioner had been detained, in pre
order of removal custody, since December 20, 2013, pursuant
final
to 8 U.S.C. § 1226(c). Since Respondent filed its brief in this
matter on August 25, 2015, Petitioner’s immigration case has
progressed substantially. On September 17, 2015, the Immigration
Judge issued a written opinion denying Petitioner’s claims for
relief and ordering Petitioner removed to Jamaica. See Ex. A IJ
Decision. Petitioner appealed that determination to the Board of
—

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Immigration Appeals (“BIA”) which issued a written decision
affirming the Immigration Judge and dismissing the appeal on
January 7,2016. See Ex. B BIA Decision. On January 20, 2016,
Petitioner filed a pro se petition for review of the BIA’s merits
decision in the Second Circuit. See Ex. E Docket for Case No.
16-186. He also filed a motion for a stay of his removal pending
this appeal. Id. at Dckt. No. 3. No action has been taken on his
stay request as of yet. Petitioner is thus subject to the forbearance
agreement in the Second Circuit.
—

—

With respect to Petitioner’s detention pending his removal,
Petitioner filed a written request for a bond determination in
accordance with the Second Circuit’s decision in Lora v.
Shanahan, 804 F.3d 601 (2d Cir. 2015), with the Immigration
Judge on November 16, 2015. See Ex. C Bond Memorandum at
2. A bond hearing was held on November 19, 2015, and a decision
was issued that day finding that the Department of Homeland
Security (“DHS”) had established that Respondent represented a
continued danger to the community and/or flight risk
(ECF No. 8, Dauenheimer Letter at page 1.) Respondent argued that Petitioner’s request to
receive a bond hearing under

§

1226 is moot because he had received this relief pursuant to the

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Second Circuit’s decision in Lora. (Id. at 2.) Respondent also argued that Petitioner is now
detained as an alien subject to a final order of removal pursuant to 8 U.S.C. §1231(a) and is not
entitled to relief under Zadvydas v. Davis, 533 U.S. 678 (2001). (Id)
Petitioner filed a reply brief on February 22, 2016. In that response, Petitioner primarily
contends that the forebearance agreement amounts to a stay of removal under

§

Petitioner contends in his reply brief that no decision was issued as to why the Immigration
Judge denied bond in Petitioner’s case and his appeal of that decision resulted in a remand by the
BIA for recovery of the record. (ECF No. 9, Reply at pages 4-5.) The Court notes that
Respondent has attached to its February 3, 2016 letter a copy of the bond redetermination
memorandum, which denied bond and found that DHS had established by clear and convincing
evidence that Petitioner is a flight risk and/or constitutes a danger to the community. (ECF No.
8-3, January 8, 2016, Bond Memorandum.) In denying bond, the Immigration Judge stated as
follows: “[Petitioner’s] criminal record includes a relatively recent conviction for assault in the
second degree in which [Petitioner] concedes having stabbed the victim with a knife resulting in
a sentence of incarceration for eleven months, together with evidence that he has been the subject
of multiple bench warrants and that he has no viable application for relief, all support the finding
that [Petitioner] is both a danger to the community and a flight risk.” (Id at page 4.)
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1231 (a)(1 )(B)(ii), and, as such, he is detained as pre-removal alien pursuant to 1226(c). (ECF
No. 9, Reply at 9-19.) This Court disagrees. Post-removal-order detention is governed by 8
U.S.C.

§

123 1(a). The removal period begins on the latest of the following:
(1) 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 an
immigration process), the date the alien is released from detention
or confinement.

§

123 l(a)(1)(B). At issue here is the language of 8 U.S.C.

§

123 1(a)(1)(B)(ii), which provides

that “[i]f the removal order is judicially reviewed and if a court orders a stay of the alien’s
removal,” the post-removal detention period begin to run on “the date of the court’s final order.”
While the court-ordered stay is in effect, the petitioner reverts to pre-removal-order detention
under

§

1226. Petitioner relies on cases outside this District and Circuit to support his argument

that the Second Circuit’s forebearance agreement amounts to a court-ordered stay under the
statute. (ECF No. 9, at page 17.)
The Third Circuit has not addressed this particular question, but has recognized that a
post-removal-order detention reverts to pre-removal-order detention where the reviewing court
orders a stay. See Leslie v. A1ty Gen. of U&, 678 F.3d 265, 270 (3d Cir. 2012) (finding that
petitioner was not detained under

§

1231 because he was “subject to and within a stay of

removal”). A number of courts in this Circuit have determined that “the Second Circuit’s
forbearance policy does not rise to the level of a formal stay of removal” under

§

1231(a). Rone

v. Aviles, No. 15-3798 (KM), 2016 WL 158521, at *5 (D.N.J. Jan. 13, 2016) (collecting cases);
see also Severin v. Aviles, No. CV 15-3711 (CCC), 2016 WL 1450550, at *2 (D.N.J. Apr. 12,
2016) (finding that Second Circuit’s forebearance policy did not amount to a stay under
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§

123 1(a); Phrance v. Johnson, No. 14-7693 (CCC), 2015 WL 8361780, at *2 (D.N.J. Dec. 8,
2015) (same); (Brodyak v. Davies, No. 14-435 1, 2015 WL 1197535, at *2 (D.N.J. Mar. 16,
2015) (noting that since stay motion had not yet been granted, basis for petitioner’s immigration
detention remained under Section 1231); Grosset v. Muller, No. 13-0654, 2013 WL 6582944, at
*2 n.2 (D.N.J. Dec. 13, 2013) (noting that since no court granted petitioner a stay of removal,
detention status remained under Section 1231 despite Second Circuit’s forbearance policy); Aziz
Attorney Gen. of U.S., No. 12-0673, 2012 WL 5207459, at *1 n.3 (M.D. Pa. Oct. 22, 2012)
(Section 1226 does not apply to forbearance of removal because no stay of removal had been
issued). The Court agrees with this persuasive authority and finds that Petitioner remains in
post-removal immigration detention, and his current detention is governed by
Zadvydas—not

§

§

1231 and

1226 and the Third Circuit’s decisions in Chavez-Alvarez, supra, and Diop v.

ICE/HomelandSec., 656 F.3d 221 (3d Cir. 2011).
In Zadvydas v. Davis, 533 U.S. 678 (2001), the U.S. Supreme Court held that

§

1231 (a)(6) does not authorize the Attorney General to detain aliens indefinitely pending removal,
but “limits an alien’s post-removal-period detention to a period reasonably necessary to bring
about that alien’s removal from the United States.” Id. at 689. To guide habeas courts, the
Supreme Court recognized six months as a presumptively reasonable period of post-removal2
order detention. Id. at 701. The Court held that, to state a claim under

§ 2241, the alien must

provide good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future. Id. at 701. Specifically, the Court determined:

The six-month period does not include Petitioner’s pre-removal detention. See Hendricks
v. Reno, 221 F. App’x. 131, 133 (3d Cir 2007) (holding that the Zadvydas six-month period was
calculated independent from the length of a petitioner’s pre-removal-order detention); see also
Severin v. Aviles, No. CV 15-3711 (CCC), 2016 WL 1450550, at *2 (D.N.J. Apr. 12, 2016)
(same); Taylor v. Atty Gen. of US., 241 F. App’x. 6, 9 (3d Cir. 2007) (same).
2

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After this 6-month period, once the alien provides good reason to believe that
there is no significant likelihood of removal in the reasonably foreseeable
future, the Government must respond with evidence sufficient to rebut that
showing. And for detention to remain reasonable, as the period of prior
postremoval confinement grows, what counts as the “reasonably foreseeable
future” conversely would have to shrink. This 6-month presumption, of course,
does not mean that every alien not removed must be released after six months.
To the contrary, an alien may be held in confinement until it has been
determined that there is no significant likelihood of removal in the reasonably
foreseeable future.
Id
Here, the removal period began on January 7, 2016 when the BIA issued its decision
denying his appeal. As such, Petitioner has just reached the six-month mark under Zadvydas.
However, as noted above, Petitioner has argued only that he is detained as a pre-removal alien
pursuant to

§ 1226, an argument that the Court finds unpersuasive for the reasons stated above.

Petitioner has not argued or provided any reason for the Court to believe that there is no
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significant likelihood of his removal in the reasonably foreseeable future. As such, the Court
will deny the Petition without prejudice at this time. Petitioner is free to file a new petition
provided that he can show that there is no significant likelihood of his removal in the reasonably
foreseeable future. An appropriate Order follows.

The Court notes that a number of courts have found that where an alien’s challenge to a
removal order prevents his removal, the six-month reasonable period of Zadvydas is extended.
See Brodyak, 2015 WL 1197535, at *3 (citing Evangelista v. Ashcrofl, 204 F. Supp. 2d 405, 409
(E.D.N.Y. 2002)); see also Soberanes v. Comfort, 388 F.3d 1305, 1311(10th Cir. 2004)
(detention “directly associated with ajudicial review process has a definite and evidently
impending termination point” and is therefore lawful); Alcinwale v. AshcroJi, 287 F.3d 1050,
1052 n.4 (11th Cir. 2002) (the filing of a motion for stay of deportation interrupts the running of
time under Zadvydas). The Court need not reach this question here as Petitioner has not met his
initial burden to show that there is no significant likelihood of his removal in the reasonably
foreseeable future.

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Madeline Cox Arleo, District Judge
United States District Court

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