FLEURANT v. GREEN

Filing 25

OPINION. Signed by Judge Susan D. Wigenton on 1/24/2020. (sm)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ORSEN F.,

Civil Action No. 16-4482 (SDW)
Petitioner,

v.

OPINION

CHARLES GREEN,
Respondent.

WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Orsen
F., filed pursuant to 28 U.S.C. § 2241 (ECF No. 1), which is on remand by order of the Third
Circuit. (ECF Nos. 14, 19). Following a scheduling order, the Government filed a supplemental
response to the Petition (ECF No. 20), to which Petitioner has replied. (ECF No. 23). For the
following reasons, this Court will dismiss this matter as moot as Petitioner remains entitled to the
bond hearing he previously received and Petitioner shall remain released on bond pending the
conclusion of his removal proceedings.

I. BACKGROUND
As this Court previously summarized the background of Petitioner’s immigration detention
in its prior opinion (see ECF No. 8 at 1-2), this Court need only briefly summarize the post-final
order history of this matter for the purposes of this opinion. On December 23, 2016, this Court
granted Petitioner’s habeas petition and granted Petitioner a bond hearing, finding that Petitioner
had been held under 8 U.S.C. § 1226(c) for a year, that Petitioner’s conduct in his removal
proceedings included his legitimate pursuit of valid avenues for at least limited relief from
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removal, and that Petitioner had not acted in bad faith in opposing his removal, and that Petitioner’s
continued detention absent bond would have become unreasonable under the Third Circuit’s
holdings in Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011), and Chavez-Alvarez v.
Warden York County Prison, 783 F.3d 469 (3d Cir. 2015). (Id. at 5-6). Following the granting of
Petitioner’s habeas petition, Petitioner received a bond hearing on January 6, 2017, and was
ordered released by an immigration judge on $ 15,000 bond. (See ECF No. 11). Petitioner posted
bond and was released from detention that same day. (Id.). Since that time, Petitioner has
remained out on bond.
Petitioner’s removal proceedings thereafter continued, albeit on the Newark immigration
court’s slower paced non-detained docket. (See ECF No. 23 at 14; Document 1 attached to ECF
No. 20 at 2). Since his release, Petitioner has appeared alongside counsel for at least two hearings
– one in August 2018, and another in March 2019. (Id.). Petitioner’s next hearing – an individual
hearing on the merits of his removal and his applications for relief therefrom – is currently
scheduled for April 2021. (Id.). The record therefore indicates that Petitioner has complied with
the terms of his bond since his release, has reported for all of his removal proceedings, and remains
out on bond without a final order of removal.
Following Petitioner’s release on bond, the Government filed an appeal of this Court’s
order granting Petitioner a bond hearing. (ECF No. 12). While that appeal was pending, the
Supreme Court issued its decision in Jennings v. Rodriguez, --- U.S. ---, 138 S. Ct. 830 (2018),
which abrogated the constitutional avoidance holdings of Chavez-Alvarez and Diop. Based on the
abrogation of those two cases which this Court followed in granting Petitioner bond, the Third
Circuit ultimately remanded this matter so that this Court could consider the effects of Jennings
upon the outcome of this matter. (ECF Nos. 14, 19).

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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”
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
The parties in this matter agree that Petitioner, absent his release on bond pursuant to this
Court’s order, would be subject to detention under 8 U.S.C. § 1226(c) insomuch as he has a
qualifying conviction and is not yet subject to a final order of removal. Although the Supreme
Court abrogated the constitutional avoidance based holdings of Diop and Chavez-Alvarez in
Jennings, both this Court and the Third Circuit have held that “Jennings did not call into question
[the] constitutional holding in Diop [and Chavez-Alvarez] that detention under § 1226(c) may
violate due process if unreasonably long.” Id.; see also Dryden, 321 F. Supp. 3d at 502. Even
after Jennings, the “constitutionality of [§ 1226(c) detention remains] a function of the length of

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the detention [and t]he constitutional case for continued detention without inquiry into its necessity
becomes more and more suspect as detention continues,” and “any determination on
reasonableness [must be] highly fact specific.” Chavez-Alvarez, 783 F.3d at 474-75; see also Diop,
656 F.3d at 232, 234. An alien’s detention will thus amount to an unconstitutional application of
§ 1226(c) requiring a bond hearing where the prolonged nature of that detention becomes “so
unreasonable [that it] amount[s] to an arbitrary deprivation of liberty [which] cannot comport with
the requirements of the Due Process Clause.” Dryden, 321 F. Supp. 3d at 502; see also Demore,
538 U.S. at 432; Chavez-Alvarez, 783 F.3d at 474. Although “aliens who are merely gaming the
system to delay their removal should not be rewarded with a bond hearing that they would
otherwise not get under the statute,” Chavez-Alvarez, 783 F.3d at 476, where an alien’s detention
becomes prolonged merely because he has pursued valid challenges to his removal, his detention
may eventually become so arbitrary that the Due Process clause requires a bond hearing. See K.A.
v. Green, No. 18-3436, 2018 WL 3742631, at * 4 (D.N.J. Aug. 7, 2018) (detention of nineteen
months in the absence of bad faith on Petitioner’s part warranted a bond hearing); see also Carlos
A. v. Green, No. 18-13356, 2019 WL 325543, at *4 (D.N.J. Jan. 25, 2019) (same for detention of
over eighteen months).
Here, Petitioner was detained for approximately a year prior to his release on bond, and
this Court found that Petitioner had not acted in bad faith in opposing his removal during that time.
Since Petitioner’s release on bond, his immigration proceedings have continued without resulting
in an order of removal or a final order granting or denying relief from removal despite the passage
of three additional years, and Petitioner is not even scheduled to have a merits hearing in his
removal proceedings for another fifteen months. During this intervening period of three years,
Petitioner appears to have complied with the requirements of his release on bond, and has attended

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all of his scheduled removal proceedings, and thus it fully appears that Petitioner continues to
pursue relief from removal in good faith and has not sought to unnecessarily prolong his removal
proceedings.
In essence, the Government requests that this Court ignore Petitioner’s actions since his
release, consider solely the length of his pre-bond order detention, and find that under the
circumstances he would not have been entitled to a bond hearing under Jennings had it applied in
December 2016. On this basis, the Government asks this Court to vacate its prior order, find
Petitioner ineligible for a bond hearing, and permit the Government to revoke that bond and take
him back into custody. Mindful of the requirement that this Court consider Petitioner’s case in a
highly fact specific manner and consider all of the factual circumstances surrounding Petitioner’s
removal proceedings, this Court declines that invitation.
Petitioner spent a year in immigration detention, and has since his release pursued relief
from removal for some three years without any evidence of bad faith. Had Petitioner been held
for that full four years in the absence of a bond hearing and without evidence of dilatory action or
bad motive on Petitioner’s part, Petitioner’s detention would clearly amount to an arbitrary and
therefore unconstitutional application of § 1226(c). See, e.g., K.A., 2018 WL 3742631 at * 4;
Carlos A., 2019 WL 325543 at *4. Although Petitioner has not been detained for the last three
years, Petitioner has been in removal proceedings for four years without a removal order or order
as to his applications for relief from removal, and as currently scheduled, Petitioner cannot expect
to have even an immigration judge’s ruling, let alone a final order from the Board of Immigration
Appeals, for more than a year.

Under these circumstances, and considering Petitioner’s

compliance with his bond order since his release, it is therefore clear that to permit the Government
to take Petitioner back into custody would amount to Petitioner being arbitrarily punished because

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his matter stopped being a priority case for the immigration court following his release on bond.
As revoking Petitioner’s bond would amount to such an arbitrary punishment, and as Petitioner’s
removal proceedings have been considerably prolonged largely for reasons beyond his control –
his placement on the non-detained docket – this Court finds that further detention of Petitioner
absent a violation of his bond order would amount to an unconstitutional application of § 1226(c).
As such, Petitioner remains entitled to the bond hearing he already received. See Dryden, 321 F.
Supp. 3d at 502. As this Court finds that Petitioner remains entitled to a bond hearing, and as
Petitioner has already received that bond hearing and has been released on bond, this matter shall
be dismissed as moot. Petitioner shall remain released on the bond previously granted him pending
the conclusion of his removal proceedings.

III. CONCLUSION
For the reasons expressed above, this Court will dismiss this matter as moot as Petitioner
remains entitled to the bond hearing he previously received and Petitioner shall remain released
on bond pending the conclusion of his removal proceedings. An appropriate order follows.

Dated: January 24, 2020
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge

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