GOMES v. TSOUKARIS et al

Filing 12

OPINION. Signed by Judge Esther Salas on 2/7/17. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Petitioner,
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v.
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CHARLES L. GREEN,
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Respondent.
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EDERJUNIO COELHO GOMES,

Civil Action No. 16-4326 (ES)

OPINION

SALAS, DISTRICT JUDGE
Petitioner Ederjunio Coelho Gomes (“Petitioner”) is currently being detained by the
Department of Homeland Security, Immigration and Customs Enforcement (“DHS/ICE”) at the
Essex County Correctional Facility in Newark, New Jersey. On July 15, 2016 Petitioner filed the
instant Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, challenging his detention
pending removal. (D.E. No. 1, Petition (“Pet”)). For the reasons stated below, the Court will
GRANT the Petition. 1
I. BACKGROUND
Petitioner is a native and citizen of Brazil who entered the United States in 2001. (Pet. at
1, 5). On July 3, 2014, Petitioner pled guilty to Manufacturing, Distribution, Dispensing, or
Possession with Intent to Manufacture Gamma Hydroxybutyrate, in violation of N.J. Stat. Ann. §
2C:35-5.2a, and of Distribution, Dispensing, or Possessing with Intent to Distribute a Controlled
Dangerous Substance on or within 1,000 feet of school property, in violation of N.J. Stat. Ann. §
1

Petitioner later filed an amended petition that remained the same in substance, but changed the
respondent because Petitioner had been transferred. (D.E. No. 4).

2C:35-7. (D.E. No. 5, Respondent’s Answer (“Ans.”) at 3). Petitioner was ordered to pay fines
and fees totaling $2,330, and sentenced to Special Probation Drug Court, through which he was
required to complete a drug treatment program, submit to random urine monitoring, and remain
drug-, alcohol-, and arrest-free. (Id.).
On January 29, 2016, ICE arrested Petitioner, detained him pursuant to 8 U.S.C. § 1226(c),
and served him with a Form I-286 Notice of Custody Determination and Notice to Appear
(“NTA”). (Id.). The NTA alleged that Petitioner’s conviction renders him removable under two
grounds: (1) 8 U.S.C. § 1182(a)(2)(A)(i)(II), as an alien who has been convicted of, or who admits
having committed, or who admits committing acts which constitute the essential elements of (or
conspiracy or attempt to violate) any law or regulation relating to a controlled substance a defined
in 21 U.S.C. § 802; and (2) 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States
without having been admitted or paroled. (Id. at 4).
On March 8, 2016, Petitioner appeared, with counsel, before the Immigration Judge (“IJ”)
for a first master calendar hearing. (Id.) At that time, he admitted the factual allegations against
him, denied his removability under the controlled-substance charge, and conceded his removability
as an alien present in the United States without having been admitted or paroled. (Id.). The IJ
continued the proceedings to give Petitioner’s counsel an opportunity prepare his case. (Id.).
On April 12, 2016, Petitioner appeared before the IJ and requested another continuance.
(Id. at 5). The IJ reset the proceedings for May 12, 2016, and directed Petitioner to file any
applications for relief at that time. (Id.). On that date, Petitioner appeared before the IJ and
requested another continuance so that he could apply for relief. (Id.). The IJ continued the
proceedings until June 21, 2016, and then again until July 8th so Petitioner could file his
application. (Id.). On July 8, 2016, Petitioner appeared before the IJ and submitted a Form I2

598 Application for Asylum and for Withholding of Removal. (Id.). The IJ set a date of
September 15, 2016, for a hearing on the merits of Petitioner’s claims. (Id. at 6). On July 15,
2016, Petitioner filed the instant petition. (D.E. No. 1).
Pursuant to an Order from this Court, Respondent filed an Answer on September 6, 2016.
(D.E. No. 5) and Petitioner filed a Reply on September 26, 2016 (D.E. No. 6). Because neither
submission addressed what occurred at the September 15 hearing before the Immigration Court,
other than to state that it had been rescheduled for November 30, this Court entered an Order
requiring a supplemental answer from Respondent.

(D.E. No. 8).

According to the

Supplemental Answer, and as conceded by Petitioner, the hearing was rescheduled at Petitioner’s
counsel’s request because he mistakenly believed that Petitioner’s merits hearing was scheduled
for October 15, 2016 and he wished to submit a sixty-five page report on country conditions for
the Immigration Court’s consideration, but he was not prepared to proceed with the merits hearing
that day. (D.E. No. 9, Respondent’s Supplemental Answer (“Supp. Ans.”) at 2).
II. DISCUSSION
A. Legal Standard
1. Jurisdiction
Under 28 U.S.C. § 2241(c), habeas relief “shall not extend to a prisoner unless . . . [h]e 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 subject matter jurisdiction under § 2241(c)(3) if two requirements
are satisfied: (1) the petitioner is “in custody,” and (2) the custody is alleged to be “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).

3

This Court has subject matter jurisdiction over this Petition under § 2241 because Petitioner
was detained within its jurisdiction, by a custodian within its jurisdiction, at the time he filed his
Petition, see Spencer v. Lemna, 523 U.S. 1, 7 (1998) and Braden v. 30th Judicial Circuit Court,
410 U.S. 484, 494–95, 500 (1973), and because Petitioner asserts that his detention is not
statutorily authorized, see Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469 (3d Cir.
2015); Diop v. ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir. 2011).
2. Authority for Detention
Federal law sets forth the authority of the Attorney General to detain aliens in removal
proceedings, both before and after issuance of a final order of removal.
Title 8 U.S.C. § 1226 governs the pre-removal-order detention of an alien. Section
1226(a) authorizes the Attorney General to arrest, and to detain or release, an alien, pending a
decision on whether the alien is to be removed from the United States, except as provided in
subsection (c). Section 1226(a) provides, in relevant part:
(a) Arrest, detention, and release
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; or
(B) conditional parole; . . .
8 U.S.C. § 1226(a).

4

Certain criminal aliens, however, are subject to mandatory detention pending the outcome
of removal proceedings, pursuant to 8 U.S.C. § 1226(c)(1), which provides in relevant part:
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any offense covered in section
1182(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[d] to a term of imprisonment of at
least 1 year, or
(D) is inadmissible under section 1182(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 released 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)(1).
In Diop v. ICE/Homeland Sec., the Third Circuit held that Ҥ 1226(c) contains an implicit
limitation of reasonableness: the statute authorizes only mandatory detention that is reasonable in
length. . . . 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. The Third Circuit accordingly ruled that Diop's pre-removal detention period of
thirty-five months was unreasonable in length. See id.; see also Leslie v. Attorney Gen. of United
States, 678 F.3d 265, 271 (3d Cir. 2012) (holding that a four-year detention is unreasonably long).
The Third Circuit held that reviewing courts “must exercise their independent judgment as
to what is reasonable.” Diop, 656 F.3d at 234. The Court of Appeals adopted a “fact-dependent
inquiry” in Diop, “requiring an assessment of all of the circumstances of any given case.” Id.
5

The facts of Diop showed that Diop had faced extensive delays in his removal proceedings due to
errors by the Immigration Judge and the Government in failing to ensure the evidence needed.
See id. Likewise, in Leslie, the Third Circuit found petitioner had endured a four year detention,
which had been delayed by the immigration court, and “ultimately remanded for further
proceedings, due entirely to clerical errors made by the immigration judge.” Leslie, 678 F.3d at
271. The Third Circuit noted that: “‘Although an alien may be responsible for seeking relief, he
is not responsible for the amount of time that such determinations may take.’” Id. (quoting Ly v.
Hansen, 351 F.3d 263, 272 (6th Cir. 2003)).
In Chavez-Alvarez v. Warden York Cnty. Prison, the Third Circuit further clarified the
guidance given in Diop. 783 F.3d 469, 474-78 (3d Cir. 2015). Specifically, the court stated that:
[A]t a certain point—which may differ case by case—the burden to
an alien's liberty outweighs a mere presumption that the alien will
flee and/or is dangerous. At this tipping point, the Government can
no longer defend the detention against claims that it is arbitrary or
capricious by presuming flight and dangerousness: more is needed
to justify the detention as necessary to achieve the goals of the
statute.
…
The primary point of reference for justifying the alien's confinement
must be whether the civil detention is necessary to achieve the
statute's goals: ensuring participation in the removal process, and
protecting the community from the danger that he or she poses.
Therefore, it is possible that a detention may be unreasonable even
though the Government has handled the removal case in a
reasonable way.
Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 474-78 (3d Cir. 2015). The court
concluded that “beginning sometime after the six-month timeframe considered by Demore, and
certainly by the time Chavez–Alvarez had been detained for one year, the burdens to Chavez–
Alvarez’s liberties outweighed any justification for using presumptions to detain him without bond
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to further the goals of the statute.” Id.
B. Analysis
Here, Respondent acknowledges the Third Circuit’s holdings in Diop and Chavez-Alvarez,
but nevertheless argues that Petitioner’s situation is distinguishable for two reasons: (1) much of
the delay in Petitioner’s proceedings to date is attributable to the Petitioner’s requests for
continuances; and (2) Petitioner’s claim for relief from removal is substantially weaker than that
of Chavez-Alvarez.
Several courts in this district have addressed these exact arguments by the Government:
Turning first to the issue of Petitioner’s responsibility for some of
the delay in his case, the Third Circuit specifically held in ChavezAlvarez that the reasonableness of a given period of detention does
not rely solely on how the Government has conducted itself, and
observed that the “primary point of reference for justifying [an]
alien’s confinement must be whether the civil detention is necessary
to achieve the statute's goals: ensuring participation in the removal
process and protecting the community from the danger [the alien]
poses.” 783 F.3d at 475. Thus, detention can become unreasonable,
and a petitioner can be entitled to a bond hearing, even where the
Government itself acted reasonably and is not responsible for the
delays in the conclusion of an alien's immigration proceedings. Id.
While the Third Circuit did observe that “certain cases might be
distinguishable [from Chavez-Alvarez where the alien is] merely
gaming the system to delay their removal,” and that the aliens in
such cases “should not be rewarded a bond hearing they would not
otherwise get under the statute,” Id. at 476, the Chavez-Alvarez
panel also observed that courts need not “decide whether an alien's
delay tactics should preclude a bond hearing” where the court could
not conclude that the alien acted in bad faith. Id.
Determining whether an alien has acted in bad faith is not a matter
of “counting wins and losses,” but is instead a fact specific inquiry
requiring consideration of whether the alien has presented “real
issues” to the immigration court by raising factual disputes,
challenging poor legal reasoning, raising contested legal theories, or
presenting new legal issues. Id. “Where questions are legitimately
raised, the wisdom of [the Third Circuit's] ruling in Leslie [v. Att'y
Gen. of the United States, 678 F.3d 265, 271 (3d Cir. 2012),] is
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plainly relevant [and the court] cannot ‘effectively punish’ these
aliens for choosing to exercise their legal right to challenge the
Government's case against them by rendering ‘the corresponding
increase in time of detention ... reasonable.’” Id. Thus, the conduct
of the parties in a vacuum does not per se determine reasonableness,
and the Court must weigh all available relevant information in
determining whether the reasonableness “tipping point” has been
reached. Id.

Fleurant v. Green, No. 16-4482, 2016 WL 7424121, at *2–3 (D.N.J. Dec. 23, 2016); see also
Madera v. Green, No. 16-5055, 2016 WL 7424487 (D.N.J. Dec. 23, 2016); Mejia v. Green, No.
16-4664, 2016 WL 7424122 (D.N.J. Dec. 21, 2016); Singh v. Rodriguez, No. 16-4603, 2016 WL
7217612 (D.N.J. Dec. 13, 2016); Rodriguez v. Green, No. 16-4431, 2016 WL 7175597 (D.N.J.
Dec. 7, 2016); Cerda-Torres v. Green, No. 16-4194, 2016 WL 7106023 (D.N.J. Dec. 6, 2016).
The procedural history of Petitioner’s proceeding is similar to the factual circumstances in
those cases.

Specifically, although there have been several delays in his immigration case

pursuant to requests by Petitioner’s counsel, there have been no allegations of bad faith on his part.
See Chavez-Alvarez, 783 F.3d at 476. Rather, it appears that each request was sought in order to
allow Petitioner time to file various forms of relief from removal. As stated by the Third Circuit,
detention can become unreasonable, and a petitioner can be entitled to a bond hearing, even where
the Government itself acted reasonably and is not responsible for the delays in the conclusion of
an alien’s immigration proceedings. Id. at 475. Moreover, although Respondent argues that
Petitioner’s claims for relief from removal are “substantially weaker” than those of ChavezAlvarez and Petitioner has not shown a “likelihood” of relief from removal, it also acknowledges
that Petitioner has submitted an application for withholding of removal based on threats made
against him in his home country of Brazil. (Answer at 19). Respondent does not believe such

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allegations are sufficient, but implicit in its argument is the concession, however remote, that there
is a possibility for relief. (Id. at 19-20).
Taking the circumstances as a whole, the Court finds that after over eleven months of
detention, the tipping point has been reached and Petitioner’s continued detention absent a bond
hearing is no longer necessary to achieve the goals of the statute. This Court therefore concludes
that Petitioner’s petition must be granted, and he should be provided a bond hearing before an
immigration judge. See Chavez-Alvarez, 783 F.3d at 477-78. 2
III. CONCLUSION
For the foregoing reasons, the Court holds that Petitioner’s continued mandatory detention,
pursuant to 8 U.S.C. § 1226(c), is no longer reasonable under the circumstances of this case.
Accordingly, the Court grants the Writ of Habeas Corpus and directs that an immigration judge
provide Petitioner with an individualized bond hearing to determine with an “whether detention is
still necessary to fulfill the statute's [§ 1226(c)] purposes,” Leslie, 678 F.3d at 270–71 (internal
quotation marks omitted), within 10 days of the date of the entry of the Order accompanying this
Opinion.
s/ Esther Salas
Esther Salas, U.S.D.J.
2

Respondent has requested that if the Petition is granted, then the Court should require Petitioner
to seek a custody determination by the deportation officer prior to receiving a bond hearing from
an immigration judge. (Ans. at 21). However, pursuant to the holdings in Diop and ChavezAlvarez, the Court will order the immigration judge to hold a bond hearing. See Diop v.
ICE/Homeland Sec., 656 F.3d 221, 235 (3d Cir. 2011) (“Should the length of his detention become
unreasonable, the Government must justify its continued authority to detain him at a hearing at
which it bears the burden of proof.”); Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469,
478 (3d Cir. 2015) (“We will . . . remand with instruction to enter an order granting the writ of
habeas corpus and ensure that Chavez–Alvarez is afforded, within ten days of the entry of this
order, a hearing to determine whether, on evidence particular to Chavez–Alvarez, it is necessary
to continue to detain him to achieve the goals of the statute.”).
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