CARMIL v. TSOUKARIS et al

Filing 11

OPINION. Signed by Judge Jose L. Linares on 12/8/16. (jr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 16-2335 (JLL)

BERLICE CARMIL,
Petitioner,

OPINION

V.

JOHN TSOUKARIS, et
Respondents

LINARES, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Berlice
Carmil, pursuant to 28 U.S.C.

§ 2241. (ECF No. 1).

following an order to answer, the

Government filed a response to the petition (ECF No. 4), to which Petitioner has replied. (ECF
No. 9). For the following reasons, this Court will deny the petition.
I. BACKGROUND

Petitioner, Berlice Carmil, is a native and citizen of Haiti who has resided in the United
States as a lawful permanent resident since December 1995. (See Docket No. 16-236 at ECF No.
4 at 1). On June 28, 2005, Petitioner was convicted of second degree robbery in New Jersey and
was sentenced to a term of eight years of imprisonment with an eighty five percent parole
disqualifier.

(Id.).

Petitioner was thereafter released from the custody of the New Jersey

Department of Corrections on April 18, 2011. (Id.).

four years later, Petitioner was taken into custody by immigration officials on June 19,
2015, and was detained pursuant to 8 U.S.C.

§ 1226(c) pending the outcome of removal

proceedings. (Id.). On January 14, 2016, Petitioner filed an immigration habeas petition arguing
that his continued detention between June 2015 and January 2016 had become unreasonable, and

was therefore unconstitutional pursuant to Diop v. ICE/Homeland Sec., 656 F.3d 221, 23 1-35 (3d
Cir. 2011), and Chavez-Alvarez v. Warden York Cottnty Prison, 783 f.3d 469 (3d Cir. 2015).

(Docket No. 16-237 at ECF No. 4 at 1-2). Following a letter from the Government in which it
conceded that Petitioner’s continued detention was not distinguishable from that found
unreasonable absent a bond hearing in Chavez-Alvarez, this Court concluded that Petitioner was
entitled to a bond hearing and granted that Petition on March 23, 2016. (Id. at 2-3). In ordering a
bond hearing for Petitioner, this Court acknowledged that Petitioner’s continued detention absent
a bond hearing had become unreasonable, and held that, under Chavez-Alvarez and Diop,
Petitioner was therefore entitled to a bond hearing where an immigration judge would be required
to determine whether Petitioner should remain in detention based on his being either a flight risk
or danger to the community. (Id.).
On April 11, 2016, Immigration Judge Alan Vomacka conducted a bond hearing for
Petitioner pursuant to this Court’s order. (ECF No. 4-1). Following that hearing, the immigration
judge concluded that Petitioner was a danger to the community based on his criminal history and
pending criminal charges, as well as Petitioner’s failure to provide any support for the assertion
that he had changed. (Id.). On June 8, 2016, the immigration judge filed a written memorandum
explaining his conclusion that Petitioner should not be granted bond. (ECF No. 4-2).
In his memorandum, the immigration judge first discussed the Third Circuit’s decisions in
Diop and Chavez-Alvarez. Id. at 3-5). Despite this Court’s bond grant order which essentially

found that Petitioner’s continued detention was unreasonable absent a bond determination based
on Petitioner’s danger to the community or flight risk, the immigration judge then concluded,
based on what was essentially a de novo consideration of the Chavez-Alvarez reasonableness
question, that Petitioner’s detention was reasonable. (Id. at 4-5). Although the immigration judge,

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in so doing, was essentially disagreeing with this Court’s bond grant order, he ultimately turned to
the question that this Court specifically placed before him

-

whether Petitioner was a sufficient

threat to the public or flight risk such that he should not be granted bond.

(Id. at 5).

The

immigration judge explained his conclusion that Petitioner should not receive bond as follows:
Once an alien’s detention is found to be unreasonable, “the Due
Process Clause demands a hearing, at which the Government bears
the burden of proving that continued detention is not necessary to
fulfill the purposes of the detention statute.” Diop, 656 F.3d at 233.
[The Government] must establish with evidence particular to the
alien that continuing to detain him or her is necessary to ensure that
the alien attends removal hearings or that his or her release will pose
a danger to the community. Diop, 656 F.3d at 233; Leslie [v. Att’y
Gen. of the United States, 67$ F.3d 265, 271 (3d Cir. 2012)];
Chavez-Alvarez, 783 F.3d at 478.
In the instant case, [Petitioner’s] detention is reasonable and
thus, the court need not reach the question of whether his continued
detention is necessary. Diop, 656 F.3d at 233 (holding that [8 U.S.C.
§ 1226(c)] is “only unconstitutional when it is applied to detain
someone for an unreasonable length of time without further
individualized inquiry into whether detention is necessary to carry
out the purposes of the statute.”). However, even if, assuming
arguendo, [Petitioner’s] detention was unreasonable, [the
Government] has met its burden of establishing that his continued
detention is necessary to fulfill the statute’s purpose of ensuring that
he attends his removal proceedings and that his release will not pose
a danger to the community. Diop, 656 F.3d at 233; Leslie, 678 F.3d
at 271; C’havez-Alvarez, 783 F.3d at 478. [The Government] has
shown that [Petitioner] was convicted of a serious crime: Robbery,
in violation of N.J. Stat. Ann. § 2C:15-1, [for] which he was
sentenced to eight years in prison. Robbery by its nature poses a
threat of imminent danger to the victim, and an indirect threat of
harm to any bystander or police officer who attempts to prevent the
crime. [The Government] argued that this conviction, in addition to
[Petitioner’s] juvenile adjudications in 2003 for possession of
firearms and possession of a controlled substance, render him a
danger to society.
[The Government] also presented evidence that [Petitioner]
is currently facing drug charges. Although the court did not consider
[those charges] as proof of guilt, the court notes that [Petitioner’s]
actions in placing himself in such a situation (he admits he remained
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in a home where he knew cocaine was in open view, while on
parole) indicate a lack of judgment.
[Petitioner] presented conclusory statements regarding his
change of character. He claimed that he had been rehabilitated, and
presented letters regarding his anger management and substance
abuse treatment, and certificates for completion of masonry,
cosmetology, and plumbing classes[.] He also argued that the
circumstances regarding his parole violation that he was residing
at his family’s home when officers found cocaine on the table that
did not belong to him indicate that he is not a danger to society.
He also argued that he was only a juvenile at the time of his robbery
arrest. However, in balancing the seriousness of [Petitioner’s]
conviction with the positive factors present, the court finds that
[Petitioner] is a danger to the community. Chavez-Alvarez, 783 F.3d
[at] 469, 474, 475 n.7[;] Diop, 656 F.3d at 234-35; see also Leslie,
67$ F.3d at 271. [Petitioner’s] juvenile adjudications and robbery
convictions indicate that he has a propensity to commit crimes and
has a disregard for the laws of the United States. Thus, he is a danger
to society.
—

—

In addition, the court finds that [Petitioner] constitutes a
flight risk. In general, the court assesses whether [Petitioner] is a
bond risk by considering any factor which tends to indicate a
respectful attitude toward our laws and court procedures, stability
and reliability in complying with schedules and deadlines, and
[Petitioner’s] motivation to attend any further court proceedings
related to this case[.] The factors ofien mentioned in these decisions
as positive points include a stable employment history, lengthy
residence in the U.S., existence of family ties here, a lack of serious
criminal or immigration violations, and no history of nonappearance for court proceedings. A long and serious criminal
record may be seen as evidence of bad character which may justify
a higher bond amount[.] Here, although [Petitioner] presented
evidence of family ties and lengthy residence in the U.S., given that
he has a conviction for robbery, a juvenile adjudication involving
firearms and drugs, and pending criminal charges, the court finds
that he constitutes a flight risk. In regard to this issue, the pending
drug charges against [Petitioner] are appropriate to consider. An
alien facing removal proceedings at the same time he must defend
against a new serious controlled substance prosecution is more
likely to be tempted to flee, at least to hope that the state charged
might be dropped if witnesses or evidence becomes unavailable.
(Document 2 attached to ECF No. 4 at 5-6).

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Following the denial of his bond, Petitioner filed his current immigration habeas petition
on or about April 25, 2016. (ECF No. 1). In that petition, Petitioner presented this Court with two
claims

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that the immigration judge improperly concluded that he was a flight risk and danger

based on his criminal history, and that the bond hearing he received denied him due process
because the immigration judge improperly placed the burden upon Petitioner rather than the
Government.

(Id.).

On April 28, 2016, this Court screened the petition and ordered the

Government to respond. (ECF No. 2). In so doing, however, this Court dismissed Petitioner’s
first claim, that the immigration judge’s bond denial was incorrect on the merits, because this Court
has no jurisdiction to consider such a claim, see $ U.S.C.

§ 1226(e). (ECF No. 2 at 2-3). The

Government was directed, however, to respond to Petitioner’s claim regarding the burden of proof
being placed upon him at the bond hearing. (Id.). The Government filed its response on July 18,
2016. (ECF No. 4). Following an extension of time and the denial of his motion to strike (see
ECF Nos. 5-8), Petitioner filed a reply brief on October 6, 2016. (ECF No. 9). On December 5,
2016, this Court received another letter from Petitioner informing the Court that he has been moved
from the Essex County Correctional Facility to the Atlantic County Jail. (ECF No. 10).
II. DISCUSSION
A. Legal Standard

Under 28 U.S.C.

§ 224 1(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.

§

224 1(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.” 2$ U.S.C.

§ 2241(c)(3); lialeng 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,

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and asserts that his continued detention violates due process, this Court has jurisdiction over his
claims. Spencer v. Lemna, 523 U.S. 1, 7 (199$); Braden v. 30th Jitdicial Circuit Court, 410 U.S.

484, 494-95, 500 (1973); see also Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
B. Analysis

In its response to Petitioner’s habeas petition, the Government argues that Petitioner has
not yet exhausted his current claims because, at the time he filed his petition, Petitioner had not
yet presented his due process argument to the Board of Immigration Appeals through his appeal
of his bond denial and removal order. (ECF No. 4). As in all habeas petitions, an immigration
detainee seeking review of his detention in this Court via a writ of habeas corpus must first exhaust
his administrative remedies in the immigration courts before pursuing his habeas petition. See Yi
v. Mattgans, 24 F.3d 500, 503-04 (3d Cir. 1994); see also Okonkwo v. I.NS., 69 F. App’x 57, 5960 (3d Cir. 2003). While it was true at the time that the Government filed its response that the

BIA had yet to rule on Petitioner’s bond appeal, the BIA affirmed the denial of bond in August
2016. (ECF No. 9 at 15-17). In affirming the denial of bond for Petitioner, the BIA ruled as
follows:
We agree with the Immigration Judge’s detennination that
[Petitioner] is a danger to the community, such that no bond is
appropriate. In a custody redetermination. the Immigration Judge
has wide discretion in deciding the factors that may be considered.
In 2005, [Petitioner] was convicted ofrobbery. and was sentenced
to a term of imprisonment of $ years. He conceded that his offense
constitutes an aggravated felony as a crime of violence and theft[.]
The Immigration Judge properly balanced the seriousness of the
offense with the positive equities presented by [Petitioner].
.

.

.

.

Based on the foregoing, we agree that [Petitioner]’s
continued detention is necessary to fulfill the purposes of the
detention statute. The Immigration Judge’s decision [denying bond]
is thus affirmed.

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(ECF No. 9 at 16, internal citations omitted). As the BIA has decided Petitioner’s administrative
appeal, it appears that Petitioner’s claims are now exhausted, and this Court will therefore consider
Petitioner’s Due Process Claim on the merits. Yi, 24 f.3d at 503-04 (district court can review
immigration habeas claim once the BIA has dealt with the alien’s administrative appeal).
following this Court’s screening Order, only a single claim remains before this Court

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Petitioner’s assertion that the immigration judge improperly placed the burden of proof upon him
to prove his entitlement to bond during his bond hearing. In Diop, the Third Circuit established
that, where this Court determines that a given alien’s continued detention under

§ 1226(c) is

unreasonable absent a bond determination, “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. At such a
hearing, the Government must therefore prove that the alien’s continued detention “is necessary
to fulfill the purposes of the detention statute,” specifically that Petitioner not be a danger to the
community and that Petition appear at removal proceedings. Id. at 233-35. Thus, Due Process
requires that, at a bond hearing pursuant to Diop and Chavez-Alvarez, the Government bear the
burden of proving that the petitioner is either a flight risk or danger to the community, and it is
only where the Goverrnnent does so that a Petitioner may be denied bond. Id.; see also Leslie, 678
F.3d at 271; Chavez-Alvarez, 783 F.3d at 478.
In this matter, Petitioner contends that the burden of proof was improperly placed upon
him rather than upon the Government. The immigration judge’s written memorandum, however,
specifically disproves that statement. While it is understandable that Petitioner may have been
somewhat confused given the immigration judge’s retreading issues already decided by this Court

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whether Chavez-Alvarez required a bond hearing1

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it is clear that the immigration judge

considered Petitioner’s history and characteristics and determined that the Government had met
its burden and shown that Petitioner was both a danger to the community at large, and a flight risk.
The BIA thereafter upheld that decision. Thus, the immigration court did consider Petitioner’s
entitlement to bond under the appropriate standard and with the burden placed firmly upon the
Government, and determined that Petitioner was not entitled to bond as the Government had met
that burden. Petitioner’s contention that he was denied Due Process because he was improperly
required to bear the burden of proof is therefore without merit. It is clear from the immigration
judge’s memorandum that the Govermrient was put to its burden, that it cleared that burden by
showing Petitioner to be a flight risk and danger to the immigration judge’s satisfaction, and that
Petitioner’s bond hearing thus complied with the requirements of Due Process. See Diop, 656 F.3d
at 233-35; Leslie, 678 F.3d at 271; Chavez-Alvarez, 783 f.3d at 478. Petitioner’s habeas petition
must therefore be denied.
III. CONCLUSION

for the reasons stated above, the petition is denied. An app nate

( 1:ee,?

follows.

H rlose L. Linares,
ted States District Judge

( / S-/i

This Court finds it puzzling that the immigration judge felt that he had the authority to reconsider
this Court’s finding that Petitioner’s continued detention without a bond hearing was unreasonable
under Chavez-Alvarez, and problematic that, despite this Court’s determination to the contrary in
granting Petitioner a bond hearing, the immigration judge concluded that Petitioner’s continued
detention without bond was reasonable. (See Document 2 attached to ECF No. 4 at 3-5). The
immigration judge’s decision to proceed as such may well be the cause of much of Petitioner’s
confusion. Because, despite this finding, the immigration judge ultimately considered Petitioner’s
entitlement to bond under the proper standard while placing the burden of proof upon the
Government as discussed herein, however, Petitioner clearly received what Due Process requires,
and the immigration judge’s reconsideration of Chavez-Alvarez is immaterial to Petitioner’s
current challenge.
$