MANCEBO PEREZ v. GREEN

Filing 8

MEMORANDUM AND ORDER granting petition for writ of habeas corpus to the following extend; that an Immigration Judge shall provide petitioner with an individualized bond hearing within ten (10) days of the date of this Order; etc. Signed by Judge Kevin McNulty on 4/4/2016. (nr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PEI)RO J. MANCEBO PEREZ,
Petitioner,

Civ. No. 16-043 8 (KM)

V.

CHARLES GREEN,

MEMORANDUM AND ORDER

Respondent.
The petitioner, Pedro J. Mancebo Perez, is an immigration detainee currently lodged
at
the Essex County Correctional Facility in Newark, New Jersey. He is a citizen of the
Dominican
Republic who lawfully entered the United States in 1992. Mr. Mancebo Perez was in
immigration detention from November 2013 to May 2014. Since June 2015 and contin
uing to the
present, he has again been detained as a result of being convicted of a drug offense in
the United
States District Court for the Middle District of Pennsylvania.
In January, 2016, Mr. Mancebo Perez filed apro se petition for writ of habeas corpus
pursuant to 28 U.S.C.

§ 2241

in this Court. He argues that his continued detention pending the

conclusion of his removal proceedings has exceeded a reasonable period of time and that
his
detention no longer serves the purposes of 8 U.S.C.

§

1226(c). Mr. Mancebo Perez requests that

he should be ordered to be released on bond or that this Court immediately order that a bond
hearing take place.
On April 1, 2016, the government filed its response to the habeas petition. (See I)kt. No.
6) In its response, the government states that it does not object to Mr. Mancebo Perez’s reques
t
for an order directing an Immigration Judge to conduct a bond hearing.

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-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 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)(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)(l).

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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:
Tit1e 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 a petitioner would be entitled to a bond hearing. See id. at 234; see
also Carter v. Aviles,
No. 13—3607, 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—71 (3d Cir.2012)); Barcelona v. Napoli
tano, No. 12—7494,
2013 WL 6188478, at *1 (D.N.J. Nov. 26, 2013) (“The Court of Appea
ls inDiop 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]eas
onableness, by its very
nature, is a fact-dependent inquiry requiring an assessment of all of the circum
stances of a
particular case.” Diop, 656 F.3d at 234. A reasonableness detenriination
“must take into account
a given individual detainee’s need for more or less time, as well as the exigen
cies of a particular
case.” IcL However, “the constitutional case for continued detention withou
t inquiry into its
necessity becomes more and more suspect as detention continues past [certai
n] thresholds.”
Chavez—Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 474 (3d Cir.
2015) (quoting Diop,
656 F.3d at 232, 234). indeed, in Chavez--Alvarez, the Third Circuit noted
with respect to the

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circumstances of that particular
case that sometime after six mo
nths, and certainly within a year,
the burden to the petitioner’s lib
erties would outweigh any justifi
cation to detain the petitioner
without a bond hearing. See Id.
at 478. A petitioner’s bad faith has
at least the potential to impact
whether a bond hearing should
be ordered. See Chavez-Alvarez
, 783 F.3d at 476 (“Because we
conclude that Chavez-Alvarez
did not act in bad faith, we do not
need to decide here whether an
alien’s delay tactics should pre
clude a bond hearing.”). Addition
ally, it is worth noting that in the
pre-removal context under Dio
p and Chavez-Alvarez, the proper
relief is to order a bond hearing
before the Immigration Judge, not
release the petitioner from immi
gration detention. See
Morrison v. Elwood, No. 12-464
9, 2013 WL 323340, at *1 (D.N.
J. Jan. 28, 2013) (“This Court’s
power to entertain habeas applica
tions ensues from the narrowlytailored mandate of 28 U.S.C.
§
2241, which with respect to the
claims raised by pre-removal ord
er alien detainee’s allows
relief limited to a directive of a bon
d hearing.”) (citing Diop, 656 F.3
d 221).
In this case, Mr. Mancebo Perez
has been detained pursuant to 122
6(c) for over fifteen
§
months. Indeed, even the govern
ment concedes at this point that
it would be appropriate for this
Court to grant the petition and ord
er that a bond hearing be held by
an Immigration Judge in
accord with Chavez-Alvarez. In
light of the length of time Mr. Ma
ncebo Perez has been in
immigration detention, along wit
h the fact that there is no evidence
of bad faith on Mr. Mancebo
Perez’s part, this Court will gra
nt the habeas petition and direct tha
t an Immigration Judge
conduct a bond hearing.
—

—

Accordingly, IT IS this 4th day
of April, 2016,

it is

ORDERED that the petition for
writ of habeas corpus is granted to
the following extent;

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ORDERED that an Immigratio
n Judge shall provide petitioner
with an individualized
bond hearing, pursuant to 8 U.S
.C. § 1226, within ten (10) days
of the date of this Order; and it
is
further
ORI)ERED that the responden
t shall report the outcome of the
bond proceeding to this
Court within seven (7) days aft
er it occurs; and it is further
ORI)ERED that the Clerk shall
serve this Memorandum Order
on petitioner by regular
U.S. mail; and it is further
ORDERED that the Clerk shall
mark this case as closed.

KIY
VIN MCNUU
United States District Judge
/

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