MADERA v. GREEN

Filing 8

OPINION. Signed by Judge Susan D. Wigenton on 12/23/2016. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

EDWARD MADERA,

Civil Action No. 16-5055 (SDW)

Petitioner,
v.

OPINION

CHARLES GREEN, et al.,
Respondents.

WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Edward
Madera, filed pursuant to 28 U.S.C. § 2241. (ECF No. 1). Following an order to answer, the
Government filed a response to the Petition (ECF No. 6), to which Petitioner has replied. (ECF
No. 7). For the following reasons, this Court will grant the petition and will direct an immigration
judge to conduct a bond hearing for Petitioner.

I. BACKGROUND
Petitioner, Edward Madera, is a native and citizen of the Dominican Republic who was
admitted into the United States as a lawful permanent resident in 1994. (Document 2 attached to
ECF No. 6 at 3-4). On November 21, 2003, Petitioner was convicted of possession with intent to
distribute cocaine in the Superior Court of New Jersey, Passaic County. (Id.). Petitioner also
received a second conviction for possession of cocaine in December 2006. (Id.). On February 9,
2016, Petitioner was taken into immigration custody and has been held since that date while his
removal proceedings are ongoing. (Id.).

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Petitioner first appeared before the immigration court on March 16, 2016. (Document 7
attached to ECF No. 6 at 2). At that time, Petitioner was granted a continuance to obtain counsel.
(Id.). Petitioner appeared again on May 11, 2016, but that hearing was continued at Petitioner’s
request. (Id.). Petitioner’s counsel requested and obtained another continuance on May 31, 2016.
(Id. at 2-3). Petitioner appeared before the immigration court once again on July 5, 2016, and his
immigration counsel again requested and was granted a continuance. (Id. at 3). According to
Petitioner, he became unhappy with his counsel’s continued requests for more time and failure to
file for relief from removal, and hired a replacement counsel in July 2016. (ECF No. 7 at 2).
Petitioner’s new counsel entered an appearance on his behalf on July 26, 2016, but that hearing
had to be continued due to the operational or security concerns of the immigration court which
were apparently not related to Petitioner’s case. (Id.; Document 7 attached to ECF No. 6 at 3).
Petitioner and his second attorney thereafter appeared before the immigration court on September
6, 2016, at which point Petitioner states his counsel “filed a complete application under [the]
[C]onvention [A]gainst [T]orture” and a new merits hearing was scheduled for November 16,
2016. (ECF No. 7 at 2). The immigration court apparently rescheduled that hearing, but the new
date conflicted without Petitioner’s counsel’s schedule, and the court therefore had not yet
scheduled a new hearing date as of the filing of Petitioner’s reply. (Id.).

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
As Petitioner is not yet subject to a final order of removal and is being held based on his
prior drug convictions, it is clear that Petitioner is currently detained pursuant to 8 U.S.C. §
1226(c). The propriety of his continued detention without a bond hearing is therefore 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 did provide

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some clarification in Chavez-Alvarez. Specifically, the Chavez-Alvarez panel 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.
In this matter, the Government argues that Petitioner’s continued detention without a bond
hearing is reasonable because Petitioner’s case is distinguishable in two respects: first, Petitioner
and his prior counsel are responsible for several months of continuances and thus contributed to
the length of his detention, and second because Petitioner only has available to him limited forms
of relief, such as his petition for relief under the Convention Against Torture, which are not
complicated and would not prevent his removal to a safe third country other than his homeland.
In making this argument, the Government does not appear to assert that Petitioner has acted in bad
faith, asserting only that Petitioner has not presented any significant argument in his immigration
matter which would prevent his removal from the United States. Petitioner in response argues that
he has now filed a proper application for relief under the Convention, and in any event that he
should not be held responsible for the continuances requested by his first attorney because she did
not provide him with adequate legal services and was replaced as a result by counsel who thereafter
promptly filed for relief.
As this Court has explained,
[t]urning 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
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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
reached.
Rodriguez v. Green, No. 16-4431, 2016 WL 7175597, at *2-3 (D.N.J. Dec. 7, 2016). Given the
standards provided in Chavez-Alvarez, this Court has in other cases concluded that a petitioner will
normally be entitled to a bond hearing where he has been detained for nearly a year while pursuing
claims that were capable of providing some relief, however limited, and no bad faith or dilatory
motive has been shown. Id. at *3.
In this matter, Petitioner has been held without a bond hearing and without a final order of
removal for nearly eleven months. While Petitioner and his prior counsel may have been

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responsible for several continuances, Petitioner, since hiring new counsel, has filed an application
for relief under the Convention Against Torture, and appears to be pursuing what limited relief is
available to him given his criminal history. As in Rodriguez, that Petitioner’s application for relief
cannot provide him complete relief from removal is immaterial to the question before this Court –
what is central is instead whether there is evidence of bad faith on Petitioner’s part, which does
not appear to be the case. Based on the record which has been presented, this Court finds that the
Government has not established that Petitioner acted in bad faith or with a dilatory motive in his
removal proceedings, and that it appears that Petitioner is pursuing legitimate, if limited, forms of
relief in his removal proceedings. Given those findings, and the nearly eleven months of detention
Petitioner has faced, this matter is not materially distinguishable from Rodriguez or ChavezAlvarez. As such, this Court finds that Petitioner’s immigration detention has reached the tipping
point wherein it is no longer reasonable under the statute to continue his detention 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.

III. CONCLUSION
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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