GREGORIO-CHACON v. LYNCH et al
Filing
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OPINION. Signed by Judge Susan D. Wigenton on 10/24/16. (cm )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JUAN CARLOS GREGORIO-CHACON,
Civil Action No. 16-2768 (SDW)
Petitioner,
v.
OPINION
LORETTA LYNCH, et al.,
Respondents.
WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Juan
Carlos Gregorio-Chacon, filed pursuant to 28 U.S.C. § 2241. (ECF No. 1-5). Following an order
to answer (ECF No. 6), the Government filed a response to the Petition (ECF No. 11). Petitioner
did not file a reply brief. For the following reasons, this Court will deny the petition without
prejudice.
I. BACKGROUND
Petitioner, Juan Carlos Gregorio-Chacon, is a native and citizen of El Salvador who
originally entered this country at an unknown time and place. In 2014, Petitioner applied for and
was granted deferred action status under immigration’s Deferred Action for Childhood Arrivals
(DACA) program. (ECF No. 5 at 2). He was thus granted deferred action status between April
2014 and April 15, 2016. (Document 1 attached to ECF No. 11 at 8). In June of 2014, Petitioner
requested and was granted permission to travel abroad back to El Salvador. (Id.). Petitioner did
so, and sought to return to this country on July 20, 2014. (Id.). On that date, Petitioner arrived at
Newark airport and sought to be admitted back into the United States. (Id.). Immigration officials
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at that time paroled him into the United States “for one day as per DACA.” (Id.). Petitioner was
thus not admitted into the country at that time.
On August 9, 2014, Petitioner fatally struck and killed a woman in Lakewood, New Jersey.
(ECF No. 5 at 2-3). Petitioner was thereafter charged with a Third Degree offense based on his
causing death while driving on a suspended license. (Id.). Petitioner was arrested on that offense
in January 2016, and pled guilty on February 22, 2016, ultimately resulting in his receiving a fortyfive day jail sentence and one year probation. (Document 1 attached to ECF No. 11 at 8).
Following his conviction, Petitioner filed an application for an extension of his deferred
action status in March 2016, which, at the time he filed his petition, had not been ruled upon by
immigration officials. (ECF No. 5 at 3). Because Petitioner’s extension had not yet been granted,
Petitioner’s deferred action status expired on April 15, 2016, and immigration officials sought him
out, arrested him, and took him into custody on April 18, 2016. (Document 1 attached to ECF No.
11 at 8). At that time, Petitioner was also served with a notice to appear charging that he was an
arriving alien who was inadmissible because he did not possess a valid visa, re-entry permit, or
other valid basis for entry into the United States. (Id.at 2). Petitioner has remained in immigration
custody since April 18, 2016, and has therefore been incarcerated for approximately six months at
this time.
II. DISCUSSION
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”
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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).
B. Analysis
1. The Statutory Basis for Petitioner’s Detention
In his habeas petition, Petitioner contends that he is being held in violation of the Due
Process Clause because he is being detained by immigration officials despite his attempt to have
his prior DACA period extended. The Government, however, contends that Petitioner is properly
being held as an arriving alien who is inadmissible, and is therefore being held pursuant to 8 U.S.C.
§ 1225(b)(2)(A). As Petitioner’s entitlement to relief depends on the basis for his detention, this
Court must first determine the basis for his detention before evaluating Petitioner’s entitlement to
relief.
In his petition, Petitioner presents no information regarding the basis for his detention, but
implies that it is connected to his having been convicted of a species of vehicular manslaughter,
suggesting that Petitioner believes he is being held pursuant to 8 U.S.C. § 1226(c). While §
1226(c) controls the detention of aliens who have effected entry into this country and are now
removable based on their having committed a felony, 8 U.S.C. § 1225(b)(2)(A) provides that an
arriving alien is considered “an applicant for admission” and that such applicants for admission
must be detained for removal proceedings “if the examining immigration officer determines that
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an alien seeking admission is not clearly and beyond a doubt entitled to be admitted.” Although §
1225(b)(2)(A) requires inadmissible arriving aliens to be detained, it does permit immigration
officials to parole those aliens into the United States. See 8 U.S.C. § 1182(d)(5)(A). Being paroled
into the United States, however, does not affect an alien’s status – he is not deemed admitted into
the United States merely because he was paroled, and is instead still considered to be standing at
the border for all legal purposes. Id. (“such parole . . . shall not be regarded as an admission of the
alien and when the purposes of such parole . . . have been served the alien shall forthwith return
or be returned to the custody from which he was paroled and thereafter his case shall continue to
be dealt with in the same manner as that of any other applicant for admission to the United
States.”); Kay v. Reno, 94 F. Supp. 2d 546, 554 (M.D. Pa. 2000) (describing the “entry fiction”
which provides that an alien who is paroled is considered to remain at the border and is not deemed
admitted into the United States).
Here, Petitioner last returned to this Country in July 2014. At that time, he was not deemed
admitted into the country, but was instead paroled into the United States as an inadmissible arriving
alien subject to DACA. Petitioner as a result was never admitted into the United States and is
subject to the entry fiction. Petitioner is therefore an inadmissible arriving alien, and is subject to
detention under 8 U.S.C. § 1225(b)(2)(A), rather than under § 1226(c), his criminal conviction
notwithstanding.
2. Petitioner’s Due Process Claim
Petitioner essentially asserts that his current detention violates Due Process. Because this
Court concludes that Petitioner is held under 8 U.S.C. § 1225(b)(2)(A), Petitioner’s entitlement to
relief from detention depends entirely on whether the Government may hold him without bond for
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approximately six months under that statute.1 Another court in this District recently considered
the propriety of seemingly indefinite detention under the statute and concluded that detention under
§ 1225(b)(2)(A) for just under a year did not violate Due Process as applicants to admission are
entitled to lesser protection than removable aliens detained pursuant § 1226(c). See Damus v.
Tsoukaris, No. 16-933, 2016 WL 4203816, at *2-4 (D.N.J. Aug. 8, 2016). The Damus court
explained as follows:
To the extent that Petitioner asserts a constitutional claim for relief
[from immigration detention], such a claim would be affected by his
status as an applicant for admission rather than an alien who has
previously entered the country. See, e.g., Maldonado v. Macias, 150
F. Supp. 3d 788, 798-800 (W.D. Tex. 2015). Petitioner’s status as
an applicant for admission affects his right to Due Process because
applicants for admission are subject to the “entry fiction” which
provides that, for legal and constitutional purposes, an alien stopped
at the border is considered to remain at the border even if he is
paroled into the country, and is treated as such for the purpose of
determining his rights to relief. Id.; see also [Kay], 94 F. Supp. 2d
[at] 554[.]. The distinction is not one without a difference, as the
Supreme Court in Zadvydas observed that it “is well established that
certain constitutional protections available to persons inside the
United States are unavailable to aliens outside of our geographic
borders,” and that “once an alien [for legal purposes] enters the
country, the legal circumstance changes, for the Due Process Clause
applies to all ‘persons’ within the United States, including aliens,
whether their presence here is lawful, unlawful, temporary or
permanent.” 533 U.S. at 693. The Court has likewise suggested that
even for those aliens found within the United States, “the Due
Process Clause does not require [the Government] to employ the
least burdensome means to accomplish [the removal of those
aliens].” Demore v. Kim, 538 U.S. 510, 523 (2003). Indeed, “the
Supreme Court has made clear that inadmissible aliens are entitled
to less due process than are resident aliens.” Maldonado, 150 F.
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Petitioner argues that his prior deferred action status under DACA somehow affects his Due
Process rights in this situation. (See ECF Nos. 1; 5). Petitioner does not explain how it affects
his status, nor provides any support for this assertion. This Court is aware of no caselaw which
supports this assertion. In any event, Petitioner’s DACA deferred action status expired in April
2016, and Petitioner has presented no evidence that he has been granted an extension of that
status or that he has been reattributed deferred status or been granted a visa. As such, the
question remains whether his detention comports with Due Process under § 1225(b)(2)(A).
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Supp. 3d at 799 (citing Demore, 538 U.S. at 547 (O’Connor, J.,
concurring)). Indeed, as Zadvydas explained, an alien’s treatment
“as if stopped at the border” has historically been held sufficient to
justify lengthy and seemingly interminable detention. 533 U.S. at
692-93 (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S.
206, 212 (1953)). By all appearances, then, Petitioner, as an alien
deemed an applicant for admission who is legally treated as if
stopped at the border is entitled to something less than the full
panoply of rights usually conferred by the Due Process Clause. Cf.
Rosales-Garcia v. Holland, 322 F.3d 386, 412 (6th Cir. 2003) (en
banc) (holding that at least the substantive portion of the Due
Process Clause must apply to even those aliens at the border as to
hold otherwise would permit the Government to “torture or
summarily execute them” which would amount to an absurd
proposition).
Thus, although Petitioner is likely not entitled to all the
rights Due Process would provide an alien considered within this
country, he has at least some entitlement to proper procedures. The
question that arises, then, is whether mandatory detention ad
infinitum comports with that entitlement. On this issue, however,
neither the Supreme Court nor the Third Circuit has provided clear
guidance. While the Third Circuit has not provided this Court with
guidance as to whether indefinite detention under § 1225(b)(2)(A)
comports with the Constitution, the Court has addressed a similar
statutory provision in the form of § 1226(c). Like § 1225(b)(2)(A),
§ 1226(c) expressly provides that the Government shall take into
custody those removable aliens who have been convicted of certain
classes of offenses, and does not provide for a bond hearing once
those aliens have been so detained. In Diop, however, the Third
Circuit held that detention subject to § 1226(c) was subject to a
reasonable time limitation as to interpret the statute to permit
indefinite detention would run the risk of running afoul of the Due
Process Clause. 656 F.3d at 231-32. Thus, as a matter of statutory
interpretation and constitutional avoidance, the Third Circuit held
that § 1226(c) authorized mandatory detention for only a reasonable
period of time, after which the Government would be required to
justify the alien’s continued detention at an individualized bond
hearing. Id. at 231-34.
Thus, the Third Circuit held in Diop that the federal courts,
in determining whether an alien subject to mandatory detention
under § 1226(c) was entitled to a bond hearing, must determine
whether the length of his detention was “reasonable,” which is a
“function of whether it is necessary to fulfill the purpose of the
statute.” Id. at 234. Such a determination is a fact specific inquiry
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“requiring an assessment of all of the circumstances of a given
case.” Id. While the Court in Diop did not provide specific guidance
as to the length of time which would cast doubt on the
reasonableness of a given alien’s detention, 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 further guidance in
Chavez-Alvarez. In Chavez-Alvarez, the Third Circuit clarified that,
at least where no evidence of bad faith on the part of the petitioner
has been presented, “beginning sometime after the six-month
timeframe [upheld by the Supreme Court in Demore, 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.
Given this case law in regard to aliens present within this
country subject to mandatory detention, the question here becomes
whether the lesser amount of Due Process to which unadmitted
aliens subject to the entry fiction are entitled requires that
1225(b)(2)(A) be interpreted to include a similar reasonableness
limitation. Several Courts have held that the distinction between
removable aliens present within this country and those not yet
admitted and legally at the border is insufficient to warrant a
difference in treatment, and that § 1225(b)(2)(A) is subject to a
reasonable time limitation as a result. See, e.g., Maldonado, 150 F.
Supp. 3d at 804-812; Bautista v. Sabol, 862 F. Supp. 2d 375, 377
(M.D. Pa. 2012); see also Rodriguez v. Robbins, 804 F.3d 1060,
1081-84 (9th Cir. 2015) (holding that aliens detained under §§
1226(a), 1226(c), 1225(b)(2)(A), and 1231(a) are all entitled to a
bond hearing after six months as all of those statutory provisions are
subject to reasonable time limitations), cert. granted sub nom.,
Jennings v. Rodriguez, --- S. Ct. ---, 2016 WL 1182403 (June 20,
2016). Other Courts have instead held that inadmissible aliens are
treated differently from those subject to removal already present
within this country, and therefore are not entitled to release on bond
during the pendency of their removal proceedings. See, e.g., Perez
v. Aviles, --- F. Supp. 3d ---, ---, 2016 WL 3017399, at * 3 (S.D.N.Y.
2016); see also See Cardona v. Nalls–Castillo, --- F.Supp.3d ---, --, 2016 WL 1553430, at *1 (S.D.N.Y. Apr. 14, 2016); Salim v. Tryon,
No. 13-6659, 2014 WL 1664413, at *2 (W.D.N.Y. Apr. 25, 2014)
(LPR was lawfully detained during removal proceedings under §
1225(b)(2)(A)); Ferreras v. Ashcroft, 160 F.Supp.2d 617, 622–27
(S.D.N.Y.2001) (holding the same for LPR detained for over 15
months); Viknesrajah v. Koson, No. 09-6442, 2011 WL 147901, at
*5–6 (W.D.N.Y. Jan. 18, 2011) (holding § 1225(b) authorized
continued detention of alien in custody for over two years during
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pendency of removal proceedings); but see Arias v. Aviles, No. 159249, 2016 WL 3906738, at *3 (S.D.N.Y. July 14, 2016)
(disagreeing with Perez and holding that § 1225(b)(2)(A) is subject
to a reasonable time limitation).
Having weighed the lesser Due Process rights to which
applicants for admission are entitled with the grave specter of
interminable detention, this Court must conclude that the former
class of cases better encapsulate the state of the law and that an
alien’s detention subject to § 1225(b)(2)(A) is subject to the
limitation that his detention may continue only for a reasonable time
at which point his continued detention would need to be warranted
by more than a presumption based on his status as an applicant for
admission alone. In so concluding, however, this Court does not
agree with the Ninth Circuit’s conclusion that the distinction
between an alien detained pending removal who is already in this
country and one who remains legally at the border as an applicant
for admission is without difference. The level of Due Process
protections to which the two classes are entitled is not equal, and
any remedy fashioned for applicants for admission would have to
uphold and continue the entry fiction even if those aliens were
released on bond or under an order of supervision. The Court also
notes that there are distinctions between § 1225 and § 1226 which
also must be taken into account in fashioning a remedy –
specifically, under § 1226, for removable aliens present in this
country, detention subject to bond is the default rule and mandatory
detention the exception, whereas § 1225 essentially sets nigh
mandatory detention as the default rule with parole for humanitarian
reasons the exception.
In this case, however, the Court need not address these issues
because this Court concludes that the length of Petitioner’s detention
has not yet reached a length of time wherein it has become
unreasonable. While this Court agrees that § 1225(b)(2)(A) must be
subject to a reasonable time limitation, what is reasonable under §
1225(b)(2)(A) for an applicant for admission not entitled to the
greater protections provided to an alien already present in this
country may well be unreasonable for those aliens detained under §
1226(c). Essentially, the distinction in the level of protections
between the two classes of aliens is one of magnitude rather than
entitlement to relief – an alien who is legally considered to remain
at the border has no right of entry into this country and is entitled to
lesser protections than one who has already entered, and as such he
may be held for a greater length of time before his continued
detention raises Due Process concerns. While it is unclear at what
point in time such concerns would rise to the level of requiring
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redress, this Court concludes that Petitioner’s current detention – for
just under a year – does not appear to be unreasonable given the
purposes of § 1225 that such detention serves – preventing the entry
of an inadmissible alien into this country. It thus appears that
detention of nearly a year would certainly be more reasonable under
§ 1225(b)(2)(A) than that which is reasonable under § 1226(c),
given the lesser level of Due Process to which aliens subject to the
entry fiction are entitled. Thus, this Court declines to extend
Chavez-Alvarez’s holding that, absent bad faith, a § 1226(c)
detainee’s detention becomes unreasonable at some point less than
a year to inadmissible aliens held pursuant to § 1225(b)(2)(A), and
instead concludes that, at this time, Petitioner’s detention has yet to
become unreasonable, and that he is therefore not entitled to relief.
Damus, 2016 WL 4203816 at *2-4.
This Court agrees with the conclusions reached in Damus. As such, Petitioner’s detention
in this case, which has lasted for just over six months at this time and remains considerably less
lengthy than the nearly a year found reasonable in Damus, clearly does not impugn Due Process.
Indeed, even if Petitioner’s detention were subject to the holding of Chavez-Alvarez, he would still
not be entitled to relief. Under that case detention does not become unreasonable until sometime
between six months and a year, and the Third Circuit has never held that detention becomes
automatically unreasonable because detention crests six months. Thus, that Petitioner has been
held for six months alone would be insufficient to warrant a bond hearing under Chavez-Alvarez.
Given the fact that inadmissible arriving aliens are subject to lesser Due Process protections than
those subject to § 1226(c), it follows as a result that Petitioner is not entitled to relief here as his
detention has not yet become unreasonable. This Court will therefore deny his habeas petition
without prejudice.
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III. CONCLUSION
For the reasons stated above, this Court will deny Petitioner’s habeas petition without
prejudice to the filing of another petition should the length of Petitioner’s detention become
unreasonable. An appropriate order follows.
Dated: October 24, 2016
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
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