BAYONA-CASTILLO v. GREEN et al

Filing 11

OPINION. Signed by Judge John Michael Vazquez on 2/27/2017. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
JOSE RICARDO BAYONA-CASTILLO, :
Civil Action No. 16-5053 (JMV)
:
Petitioner,
:
:
v.
:
OPINION
:
CHARLES L. GREEN,
:
:
Respondent.
:
____________________________________:
APPEARANCES:
John P. Leschak
Leschak & Associates, LLC
3587 Highway 9N, Suite 217
Freehold, NJ 07728
on behalf of Petitioner
Ubaid Ul-Haq
U.S. Department of Justice, Civil Division
Office of Immigration Litigation
P.O. Box 868
Ben Franklin Station
Washington DC 20044
on behalf of Respondent

VAZQUEZ, United States District Judge
On August 15, 2016, Petitioner, acting pro se, filed a Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2241 (ECF No. 1), challenging his prolonged pre-final removal order detention
by U.S. Immigration and Customs Enforcement (“ICE”). On October 11, 2016, Respondent filed
a response to the petition, opposing habeas relief on the basis that mandatory detention under 8
U.S.C. § 1226(c) is reasonable under the circumstances present here. (ECF No. 4.) Attorney John

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Leschak entered an appearance as counsel for Petitioner on November 2, 2016, and filed a reply
to Respondent’s Answer on November 9, 2016. (ECF Nos. 5, 7.) Respondent filed a response on
December 7, 2016. (ECF No. 10.)
I.

BACKGROUND

In his petition for habeas corpus relief under 28 U.S.C. § 2241, Petitioner alleges he has
been in the custody of ICE, held in Essex County Correctional Facility since February 10, 2016.
(ECF No. 1 at 1.) Petitioner is a native and citizen of Peru. (Id.) He entered the United States as
a lawful permanent resident on September 20, 1981. (Id. at 4, ¶7.) On December 8, 1995,
Petitioner was convicted in the Superior Court of New Jersey, Passaic County, of possession of
CDS (marijuana) with intent to distribute, and unlawful possession of a defaced weapon. (ECF
No. 4 at 7; Ex. D at 37.) He was sentenced to a 180-day term of imprisonment and three years of
probation. (Id.)
On November 7, 2003, Petitioner was convicted of possession of CDS (cocaine) in the
Superior Court of New Jersey, Passaic County. (Id.) He was sentenced to three years of probation.
(Id.; Ex. D at 20.) While Petitioner was on probation, in August 2004, he was arrested for operating
a CDS facility; being a leader of a narcotics network; conspiracy to distribute heroin/cocaine;
distributing heroin/cocaine; and possession of CDS. (ECF No. 4 at 7-8; Ex. D at 25.) He was
sentenced to 364 days imprisonment for violating his probation. (Id. at 8; Ex. D. at 22.)
On February 10, 2016, ICE arrested Petitioner and issued a Notice to Appear, charging him
with removability under 8 U.S.C. § 1227(a)(2)(B)(i) and 8 U.S.C. § 1101(a)(43)(B) and 8 U.S.C.
§ 1227(a)(2)(A)(iii), due to his convictions for a controlled substance offense and an aggravated
felony involving illicit trafficking of a controlled substance. (ECF No. 4 at 8; Ex. E at 60.) On
March 18, 2016, ICE withdrew a second charge of aggravated felony and added a charge of

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removability for an alien convicted of certain firearm offenses, pursuant to 8 U.S.C. §
1227(a)(2)(C). (ECF No. 4 at 8, n.1.) Petitioner is detained as a criminal alien under 8 U.S.C. §
1226(c). (Id. at 6.)
Petitioner made his initial appearance in his removal proceedings on March 16, 2016.
(ECF No. 4 at 9; Ex. A at 3, ¶4.) He contested his removability, and his counsel requested time to
brief the motion to terminate. (Id.) The matter was reset to May 11, 2016. (Id.) The immigration
judge (“IJ”) denied Petitioner’s motion to terminate, and Petitioner requested a continuance to file
applications for relief from removal. (Id.; Ex. A at 3-4, ¶6.) The hearing was continued to June
22, 2016. (Id.; Ex. A, ¶7.) However, Petitioner’s counsel asked for a further continuance to seek
post-conviction relief from Petitioner’s 2003 conviction. (Id. at 9; Ex. I.) The IJ granted the
continuance, rescheduling the hearing for July 19, 2016. (Id. at 10; Ex. A at 4, ¶7.)
Petitioner sought a further continuance because his post-conviction relief proceedings had
been continued. (Id.; Ex. J at 89-90.) The IJ continued the matter to August 24, 2016, because
counsel had not prepared an application for relief. (Id.; Ex. K at 97). When Petitioner filed his
application for relief on August 24, 2016, the IJ set the merits hearing for November 14, 2016.
(Id., Ex. A at 4, ¶9.)
II.
A.

DISCUSSION

Standard of Review

8 U.S.C. § 1226(c)(1) mandates that the Government “take into custody” aliens who are
convicted of certain crimes or have engaged in certain terrorist activities. Section 1226(c)’s
mandate includes aliens who are deportable because they have committed drug-related offenses.
8 U.S.C. §§ 1226(c)(1)(B); 1227(a)(2)(B)(i)).
Detention without the possibility of bond “for a reasonable period of time” pursuant to §

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1226(c) is constitutional. Diop v. ICE/Homeland Sec., 656 F.3d 221, 223 (3d Cir. 2011). Section
1226(c) detention may raise constitutional concerns if detention becomes unreasonably prolonged.
Id. Under Diop, the reasonableness of a period of detention is “a function of whether it is necessary
to fulfill the purpose of the statute.” Id. at 234. Once detention becomes unreasonably prolonged,
“the authorities must make an individualized inquiry into whether detention is still necessary to
fulfill the statute’s purposes of ensuring that an alien attends removal proceedings and that his
release will not pose a danger to the community.” Id. at 231.
The Third Circuit has not imposed a bright-line rule for when detention becomes
unreasonably prolonged; the inquiry is fact-intensive. Chavez-Alvarez v. Warden York County
Prison, 783 F.3d 469, 474, n.7 (3d Cir. 2015). In Chavez-Alvarez, the court noted that after six
months of detention, “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.” Id. at 478.
B.

Arguments

Respondent contends Petitioner’s detention is reasonable because 161 days of Petitioner’s
detention [at the time the answer was filed on October 11, 2016] are attributable to his counsel’s
request for continuances. (ECF No. 4 at 19.) Two of those continuances were for the purpose of
collaterally attacking a 13-year-old criminal conviction. (Id. at 20.) Pendency of a collateral attack
does not affect the immigration consequences of a final criminal conviction. (Id. citing Medina
Lopez v. Att’y Gen. of the U.S., 425 F. App’x 146, 150 (3d Cir. 2011); Paredes v. Att’y Gen. of the
U.S., 528 F.3d 196, 198-99 (3d Cir. 2008)). Therefore, the IJ was not required to grant a
continuance for this purpose.
Respondent further contends that Petitioner lacks a bona fide challenge to his removal. (Id.

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at 21.) Petitioner is statutorily ineligible for any type of relief from removal because he has been
convicted of an aggravated felony. (Id. citing 8 U.S.C. § 1229(b)(a)(3)). The only form of relief
available to Petitioner is deferral of removal under the Convention Against Torture. (Id., citing 8
C.F.R. § 1208.17(a); 8 C.F.R. § 1208.16(d)(2); Baboolall v. Att’y Gen. of U.S., 606 F. App’x 649,
656 (3d Cir. 2015)). Respondent asserts it is difficult to conceive how Petitioner, who has not
lived in Peru for more than 35-years, would succeed on his CAT claim, where he must prove that
he fears torture by a public official or person acting in an official capacity if returned to Peru. (Id.
at 22.) Finally, Respondent argues that Petitioner’s length of detention is akin to petitioners whose
habeas petitions have been dismissed without prejudice because the detention is not unreasonably
prolonged. (Id. at 18.)
In reply to Respondent’s arguments, Petitioner first contends that 152 days of his detention
are not attributable to his own delays in removal proceedings. (ECF No. 7 at 7.) Petitioner asserts
that he did not request continuances on March 16, 2016 or May 11, 2016. (Id.) Petitioner concedes
that 64 days of the delay in his proceedings are attributable to his requests for continuances
between June 22, 2016 and August 24, 2016. (Id. at 8.) Petitioner further argues he should not be
punished for seeking continuances to collaterally attack his 2003 criminal conviction. (Id.)
Petitioner notes that if he is successful in his collateral attack on his conviction, he is eligible to
seek relief under former INA § 212(c). (Id.)
Petitioner asserts he has been in ICE detention longer than the 180 days he served in jail
for his crimes. (Id.) He contends the Court should consider the fact that he is presently detained
in a penal institution alongside convicted criminals. (Id. at 20-21.) Finally, Petitioner argues that
his continued detention does not serve the legislative purpose of § 236(c) because his convictions
are more than 10-years-old, and his 2004 sentence was for violation of probation, not a subsequent

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offense. Therefore, he is offense-free since 2004, and is no longer a danger to the public. (Id. at
21.)
Respondent contests Petitioner’s arguments. (ECF No. 10.) First, Respondent claims
Petitioner was responsible for the delays in proceedings in March and May of 2016. (Id. at 5.)
Although Petitioner did not request continuances, the continuances were required because counsel
was not prepared to go forward at those proceedings because he had not submitted the proper
written materials. (Id. at 6-10.) Respondent contends that but for Petitioner’s delays, he could
have been ordered removed on May 11, 2016. (Id. at 10.)
Second, Respondent reiterates that filing a collateral attack on a criminal conviction does
not suspend entry or execution of a removal order. (Id. at 11.) Therefore, the delay for such a
proceeding should be chargeable to Petitioner. (Id. at 12.) Respondent concludes the removal
proceedings have been progressing “as quickly as [Petitioner] has allowed,” and his detention
remains reasonably necessary to secure his removal. (Id. at 15.) The merits hearing on Petitioner’s
removal was set for January 24, 2017. (Id. at 11.)
C.

Analysis

“District courts retain jurisdiction to hear habeas petitions filed by aliens subject to removal
for having committed certain criminal offenses, as well as those filed by non-criminal aliens, where
they allege constitutional violations.” Pisciotta v. Ashcroft, 311 F.Supp.2d 445, 453 (D.N.J. Jan.
9, 2004) (citing Chmakov v. Blackman, 266 F.3d 210 (3d Cir. 2001)). The constitutionality of preremoval order mandatory detention “is a function of the length of the detention.” Chavez-Alvarez,
783 F.3d at 474 (quoting Diop, 656 F.3d at 232.)) Reasonableness of the length of detention is
highly fact-specific. Id. The inquiry involves more than which party caused the delay. Id. at 475.
“The most important consideration . . . is whether an alien challenges aspects of the Government's

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case that present real issues, for example: a genuine factual dispute; poor legal reasoning; reliance
on a contested legal theory; or the presence of a new legal issue.” Id. at 476.
Here, the unnecessary delays caused by Petitioner’s counsel’s unpreparedness for
immigration proceedings, March 16, 2016 through June 22, 2016 (98 days), are not attributable to
the Government. As Respondent noted, Petitioner could have been ordered removed as early as
May 2016, but for these delays.
The 63-day delay from June 22, 2016 through August 24, 2016, was caused by Petitioner’s
continuances for seeking post-conviction relief for his 2003 criminal conviction. There is no
possibility of relief from removal based on a final criminal conviction until it has been overturned.
Paredes, 528 F.3d at 198-99. Therefore, it is unnecessary for an IJ to grant a continuance to seek
such relief. Here, Petitioner could have sought post-conviction relief many years earlier to avoid
the immigration consequences. Petitioner cannot now argue that his pre-removal detention is
unreasonable where he caused part of the delay to challenge a thirteen-year-old conviction.
Petitioner has now been detained by ICE for just over one-year, but 161 days of the
detention were due to the requests and unpreparedness of Petitioner’s counsel. Importantly, such
delays were not attributable to the Government. Under the circumstances, where only seven
months of Petitioner’s detention can fairly be attributed to the Government for pre-removal
detention of a criminal alien, Petitioner’s detention is not yet unreasonably prolonged. See e.g.
Krumah v. Hendricks, Civ. Action No. 13-4249 (SDW), 2013 WL 5797680, at *3 (D.N.J. Oct. 28,
2013) (10-month detention was reasonable where Government was not responsible for any delay);
Espinoza-Loor v. Holder, Civ. Action No. 11-6993 (FSH), 2012 WL 2951642, at *7 (D.N.J. July
2, 2012) (13-month detention not unreasonable where petitioner requested multiple continuances);
Bete v. Holder, No. Civ. Action No. 11-6405 (SRC), 2012 WL 1067747, at *8 (D.N.J. Mar. 29,

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2012) (one-year detention was reasonable where the petitioner contributed to the delay in
proceedings).
III.

CONCLUSION

For the reasons discussed above, the Court dismisses the habeas petition without prejudice,
for failure to state a habeas claim for relief.

An appropriate Order follows.

Date: February 27, 2017
At Newark, New Jersey

s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge

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