FLEURANT v. GREEN
OPINION. Signed by Judge Susan D. Wigenton on 12/23/16. (dc, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 16-4482 (SDW)
WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Orsen
Fleurant, filed pursuant to 28 U.S.C. § 2241. (ECF No. 1). Following an order to answer (ECF
No. 2), the Government filed a response to the Petition (ECF No. 4), to which Petitioner has
replied. (ECF No. 5). For the following reasons, this Court will grant the petition and will direct
an immigration judge to conduct a bond hearing for Petitioner.
Petitioner, Orsen Fleurant, is a native and citizen of Haiti who became a lawful permanent
resident of this country in September 2000. (Document 1 attached to ECF No. 4 at 2). In February
2014, Petitioner was convicted of two drug charges in the Superior Court of New Jersey,
Monmouth County. (Id.). He received a five year prison sentence as a result. (Id.). On December
17, 2015, Petitioner was taken from state custody at the Wagner Youth Correctional Facility into
immigration detention at the Essex County Jail. (Document 4 attached to ECF No. 4 at 2).
Petitioner was also provided with a notice to appear at that time informing him that he was
removable based on his past drug convictions. (Id.). Petitioner has remained detained pursuant to
8 U.S.C. § 1226(c) since that time, and is not yet subject to a final order of removal. (Id. at 3; ECF
Petitioner first appeared before the immigration courts on January 27, 2016. (Document 4
attached to ECF No. 4 at 3). Petitioner’s matter was rescheduled at that time so that Petitioner
could obtain counsel. (Id.). Petitioner appeared before the immigration court once again on March
2, 2016, and his hearing was once again continued so that he could hire counsel. (Id.). On April
27, 2016, Petitioner returned to immigration court and filed an application for asylum and
withholding of removal. (Id.). Although Petitioner’s hearing was then set to continue in August
2016, that hearing was moved up to June 20, 2016. (Document 7 attached to ECF No. 4). Notice
of that date change, however, was apparently not properly served on Petitioner’s counsel, and his
hearing was ultimately moved back to August 24, 2016. (Id.). Petitioner ultimately appeared for
another hearing on September 6, 2016, at which time the immigration judge granted a motion by
Petitioner for a continuance so that he could further prepare his case. (Id.). Petitioner was
apparently then scheduled to return on November 2, 2016. (Id.). Neither party has informed the
Court what, if anything, occurred at the November 2 hearing, but it does not appear that Petitioner
has received a final order of removal at this time.
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).
The parties in this matter agree that Petitioner is currently detained pursuant to 8 U.S.C. §
1226(c) based on his prior drug convictions, and that Petitioner is not yet subject to a final order
of removal. As a result, the propriety of his continued detention without a bond hearing is
governed 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 is a fact specific inquiry “requiring an assessment of all of the
circumstances of a given case” Id. at 234. Reasonableness in this context is “a function of whether
[continued detention without bond] is necessary to fulfill the purpose of the statute,” specifically
protecting the public and ensuring that the petitioner attends his removal proceedings. Id. While
the Diop panel of the Third Circuit declined to adopt a bright line rule for determining
reasonableness solely on the basis of the passage of time, 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 has recently
provided further guidance in that regard in the form of Chavez-Alvarez. In that case, the Third
Circuit held that, at least where the Government does not show bad faith on the petitioner’s part,
“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 [will outweigh] any justification for using
presumptions to detain him without bond to further the goals of the statute.” 783 F.3d at 478.
Although the Government acknowledges the applicability of Diop and Chavez-Alvarez to
this matter, the Government argues that those cases are distinguishable and that Petitioner’s
continued detention for approximately a year without a bond hearing therefore remains reasonable.
The Government presents two bases for this claim – that Petitioner is responsible for several of the
delays in his immigration proceedings and because even if his claims for relief from removal were
successful, Petitioner could still be removed to a country other than his home country of Haiti.
The Government also argues that Petitioner’s claims for relief are not overly complicated. In
making this argument, however, the Government does not argue that Petitioner’s claims for relief
are completely without merit nor that Petitioner’s requests for continuances were the result of a
This Court recently dealt with a nearly identical argument and rejected it in Rodriguez v.
Green, No. 16-4431, 2016 WL 7175597, at *2-3 (D.N.J. Dec. 7, 2016). As this Court explained
in that matter:
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
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
Id. This Court therefore concluded that the petitioner in that case was entitled to a bond hearing
because he had been detained for nearly a year, was pursuing claims that were capable of providing
some relief, however limited it may be, and because the Government had not shown bad faith or
dilatory motive on the part of the petitioner. Id. at *3.
This matter is not materially distinguishable from Rodriguez or Chavez-Alvarez. Petitioner
in this matter has been held for approximately a year without receiving a bond hearing and has
been pursuing several avenues for relief from removal. While those claims for relief may not be
as novel or complex as those presented in Chavez-Alvarez, and may ultimately only prevent his
removal to Haiti rather than prevent his removal from the United States entirely, nothing the
Government has presented suggests that Petitioner has been acting in bad faith or been
unnecessarily delaying his immigration proceedings. Instead, it appears that Petitioner has been
pursuing the few opportunities for relief available to him in light of his criminal history. As this
Court explained in Rodriguez, that Petitioner may not receive complete relief from removal is
immaterial so long as he is litigating his removal without bad faith, which appears to be the case
based on the evidence presented here. As this Court does not find bad faith, and as Petitioner has
been held for approximately a year without a bond hearing, this Court concludes that Petitioner’s
case cannot be meaningfully distinguished from Rodriguez or Chavez-Alvarez, and Petitioner’s
detention has reached the tipping point where his continued detention is no longer constitutionally
reasonable absent a particularized determination as to his danger to the community and potential
flight risk. This Court will therefore grant this petition and direct the immigration Court to provide
Petitioner with a bond hearing in accordance with Chavez-Alvarez. 783 F.3d 477-78.
For the reasons expressed above, this Court will grant Petitioner’s petition for a writ of
habeas corpus (ECF No. 1), and will direct an immigration judge to provide Petitioner with a bond
hearing. An appropriate order follows.
Dated: December 23, 2016
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
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