VILLAVICENCIO PEREZ v. CHARLES GREEN
OPINION. Signed by Judge Susan D. Wigenton on 06/01/2016. (JB, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD A. VILLAVICENCIO PEREZ,
Civil Action No. 16-562 (SDW)
JOHN TSOUKARIS, et al.,
WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Richard
A. Villavicencio Perez, filed pursuant to 28 U.S.C. § 2241. (ECF No. 1). The Government filed
a response to the petition (ECF No. 5), to which Petitioner has responded (ECF No. 6). For the
following reasons, this Court will grant the petition and will remand this matter to an immigration
judge for a bond hearing.
Petitioner is a native and citizen of Ecuador who entered this country and apparently
became a lawful permanent resident in March 2007. (ECF No. 1 at 2). On July 18, 2014, Petitioner
was convicted of conspiracy to commit theft in violation of N.J. Stat. Ann. § 2C:5-2A and 2C:203A. (Id.). Following his conviction, Petitioner was sentenced to 662 days’ imprisonment and one
year of probation. (Id.). Following his release from imprisonment, Petitioner was taken into
custody by immigration officials on March 25, 2015, and entered removal proceedings. (ECF No.
5 at 2). Petitioner has remained detained since that time. (Id.).
On September 10, 2015, Petitioner was ordered removed by an immigration judge. (Id.).
Petitioner appealed, and the BIA affirmed the removal order on December 14, 2015. (Id.).
Although Petitioner did not initially file a timely appeal with the Third Circuit, he ultimately did
file an appeal with the Court of Appeals on or about March 18, 2016. (Third Circuit Docket No.
16-1601, Motion dated March 18, 2016). Petitioner also filed with the Court of Appeals a motion
for stay of removal, which was temporarily granted pursuant to the Third Circuit’s standing order
on April 8, 2016. (Third Circuit Docket No. 16-1601, Document No. 3112258363). Petitioner’s
formal motion for a stay of removal, although temporarily granted, remains pending before a
motions panel of the Third Circuit, as does his appeal. (Third Circuit Docket No. 16-1601, ECF
A. Legal Standard
Under 28 U.S.C. § 2241(c), habeas relief may be extended to a prisoner only when he “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 jurisdiction over such a petition if the petitioner is “in custody”
and the custody is allegedly “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). As Petitioner is
currently detained within this Court’s jurisdiction, by a custodian within the Court’s jurisdiction,
and asserts that his continued detention violates due process, this Court has jurisdiction over his
claims. Spencer v. Lemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Court, 410 U.S.
484, 494-95, 500 (1973); see also Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
In order to determine whether Petitioner is entitled to relief, this Court must first address
the statutory basis for Petitioner’s current detention. Petitioner’s detention arises out of either 8
U.S.C. § 1226(c) or 8 U.S.C. § 1231(a). While § 1226(c) controls the detention of certain criminal
aliens during the pendency of removal proceedings, § 1231(a) controls the detention of removable
aliens “during” and “beyond” “the [statutory] removal period.” See Leslie v. Attorney Gen. of
United States, 678 F.3d 265, 269-70 (3d Cir. 2012). Thus, if Petitioner’s detention currently falls
within or beyond the statutory removal period, his detention must be controlled by § 1231(a).
Pursuant to the statute, the removal period in a given alien’s case begins on the latest of the
following dates: the date that the alien’s 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”; or if the alien is detained on a basis other than his removal, the date
on which he is released from that other detention. 8 U.S.C. § 1231(a)(1)(B). The Third Circuit in
Leslie thus explained that “during a stay of removal” entered by a Court of Appeals “§ 1226, [and]
not § 1231 governs detention.” Leslie, 678 F.3d at 270. It “is only through the grant of a stay or
the overturning of a final order of removal that an alien’s status reverts to pre-removal detention,
the filing of an appeal or an application for a stay is insufficient to alter [an] alien’s status. See
Leslie, 678 F.3d at 268-70; Llorente[ v. Holder, No. 11-6940,] 2012 WL 119147[, at *5-6 (D.N.J.
Apr. 10, 2012)].” Granados v. Green, No. 15-8577, 2015 WL 9216595, at *2 (D.N.J. Dec. 16,
In this matter, the BIA affirmed Petitioner’s order of removal in December 2015. Petitioner
thus entered the removal period on that date as his removal order had become administratively
final. While this would normally be dispositive of the custody basis inquiry, Petitioner in this case
filed a late appeal with the Third Circuit which was accompanied by a motion for a stay of removal.
Because Petitioner’s motion for a stay of removal was temporarily granted pursuant to the Third
Circuit’s standing order, Petitioner has received a stay of removal. As such, Petitioner’s detention
has reverted to pre-final order status, and Petitioner is currently being detained pursuant to §
1226(c) rather than § 1231(a). See Leslie, 678 F.3d at 270; see also 8 U.S.C. § 1231(a)(1)(B).
Only when the Third Circuit either vacates the temporarily granted stay or enters a final decision
on Petitioner’s appeal will Petitioner return to final order status and be subject to custody under §
Because Petitioner is currently detained pursuant to § 1226(c), the propriety of his
continued detention without a bond hearing is controlled by the Third Circuit’s decisions in Diop
v. ICE/Homeland Sec., 656 F.3d 221, 231-35 (3d Cir. 2011), and Chavez-Alvarez v. Warden York
County Prison, 783 F.3d 469 (3d Cir. 2015). In Diop, the Third Circuit held that § 1226(c)
“authorizes detention for a reasonable amount of time, after which the authorities must make an
individualized inquiry into whether detention is still necessary to fulfill the statute’s purposes.”
656 F.3d at 231. The determination of whether a given period of detention is reasonable under the
circumstances is a fact specific inquiry “requiring an assessment of all of the circumstances of a
given case.” Id. at 234. Under Diop, the reasonableness of a period of detention is “a function of
whether it is necessary to fulfill the purpose of the statute.” Id.
This Court notes that while the Government in its response contended that Petitioner was detained
pursuant to § 1231(a), the Government had not yet been made aware of Petitioner’s filing of a late
appeal with the Third Circuit, which was filed contemporaneously with the Government’s
response. Likewise, Petitioner’s stay motion was not temporarily granted until well after the
Government filed its response. As such, the Government was correct that Petitioner was subject
to detention under § 1231(a) at the time the response was filed, and Petitioner’s status and the
statutory basis for his detention did not change until the Third Circuit temporarily granted
Petitioner a stay in April 2016. See Leslie, 678 F.3d at 268-70; Llorente, 2012 WL 119147 at *56.
While the Court of Appeals in Diop did not adopt a bright line rule as to the maximum
amount of time which may pass before a petitioner’s detention becomes unreasonable, see 656
F.3d at 234; see also Carter v. Aviles, No. 13-3607, 2014 WL 348257, at *3 (D.N.J. Jan. 30, 2014),
the Third Circuit provided more guidance on that issue in Chavez-Alvarez. In Chavez-Alvarez, the
Court of Appeals held that, at least in those cases where no evidence of bad faith has been
presented, “beginning sometime after the six-month timeframe [upheld by the Supreme Court in
Demore [v. Kim, 538 U.S. 510, 532-33 (2003),] and certainly by the time [the petitioner] had been
detained for one year, the burdens to [the petitioner’s] liberties outweighed any justification for
using presumptions to detain him without bond to further the goals of the statute.” 783 F.3d at 478.
Thus, absent evidence of bad faith, a given alien’s detention will generally become unreasonable
sometime after six months have passed and certainly by the time the alien has been detained for
over a year.
In this matter, Petitioner has been detained since March 2015. Because he has been
temporarily granted a stay of removal by the Third Circuit, he is currently not subject to a final
order of removal. Leslie, 678 F.3d at 270. Because no evidence of Petitioner’s bad faith has been
presented, it therefore appears that Petitioner’s case is not meaningfully distinguishable from that
presented in Chavez-Alvarez. Because Petitioner is currently detained pursuant to § 1226(c) based
on the temporary grant of his stay of removal, because Petitioner has been detained for well over
a year, and because Petitioner’s case is not meaningfully distinguishable from Chavez-Alvarez,
this Court will grant the petition and remand this matter to an immigration judge for a bond hearing.
For the reasons stated above, this Court will grant Petitioner’s petition for a writ of habeas
corpus (ECF No. 1) and will remand this matter to an immigration judge for a bond hearing. An
appropriate order follows.
Dated: June 1, 2016
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?