SUTAJ v. RODRIGUEZ
OPINION. Signed by Judge John Michael Vazquez on 1/5/2017. (ld, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 16-5092 (JMV)
Perham Makabi, Esq.
125-10 Queens Blvd., Suite 6
Kew Gardens, NY 11415
on behalf of Petitioner
Allan B.K. Urgent
Office of the U.S. Attorney
970 Broad Street, Suite 700
Newark, NJ 07102
on behalf of Respondent
VAZQUEZ, United States District Judge
On August 19, 2016, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 (ECF No. 1), challenging his prolonged detention by U.S. Immigration and Customs
Enforcement (“ICE”). On October 7, 2016, Respondent filed a response to the petition, opposing
habeas relief on the basis that Petitioner is detained pursuant to 8 U.S.C. § 1187(c)(2), and is not
entitled to a bond redetermination. (ECF No. 6.). 8 U.S.C. § 1187(c)(2) describes the requirements
for a country to be designated as a program country under the Visa Waiver Program (“VWP”).
In his petition, Petitioner alleges he has been in the custody of ICE and held in Elizabeth
Detention Center in Elizabeth, New Jersey since September 3, 2015. (ECF No. 1, ¶¶2-3.)
Petitioner is a citizen of Albania. (Id., ¶2.) He entered the United States on March 4, 2015, using
a false Italian passport. (Id., ¶15; ECF No. 6 at 2.) He was paroled into the United States for
ninety days for criminal prosecution. (ECF No. 6 at 2.) On April 28, 2015, in the United States
District Court, Eastern District of New York, Petitioner pleaded guilty to false use of a passport,
in violation of 18 U.S.C. § 1543. (ECF No. 1 at 6-7.) He was sentenced to a 6-month term of
On September 3, 2015, Petitioner signed a sworn statement before a Border Protection
Officer at JFK airport, stating that the purpose of his arrival in the United States on March 4, 2015
was to seek asylum. (ECF No. 6-1, Ex. A at 3.) He expressed fear of persecution by the Albanian
government if he were to return. (Id.) Petitioner was found inadmissible, and he was processed
as a “Visa Waiver Refusal with a Limited Review Hearing.” (ECF No. 6-1, Ex. C at 6.) Petitioner
was served with a Form I-863, “Notice of Referral to Immigration Judge,” for asylum-only
proceedings. (ECF No. 6-1, Ex. D at 1.) Asylum-only proceedings are governed by 8 C.F.R. §
1208.2(c)(3)(i). See Zine v. Mukasey, 517 F.3d 535, 543 (8th Cir. 2008) (finding that aliens who
enter under the VWP by presenting false travel documents and then apply for asylum are issued a
Form I-863 for asylum-only proceedings under 8 C.F.R. § 1208.2(c)(3)(i)) (citing 8 C.F.R. §
A hearing was scheduled for Petitioner’s asylum-only proceedings on September 21, 2015.
(ECF No. 6-1, Ex. E.) Petitioner’s counsel requested an adjournment until October 1, 2015. (Id.)
On October 1, 2015, the hearing was adjourned again because Petitioner did not provide an original
of his Form I-589 application to the Immigration Court. (ECF No. 6-2, Ex. F at 5.) On October
22, 2015, the Immigration Judge (“IJ”) reviewed the exhibits with the parties and scheduled a
merits hearing for February 8, 2016. (Id.; Ex. H.)
On February 8, 2016, the Immigration Court entered a briefing schedule and reset the
merits hearing for March 8, 2016. (Id., Ex. I.) At the hearing on March 8, 2016, the IJ denied
Petitioner’s application for asylum, withholding of removal, and request for protection under the
Convention Against Torture (“CAT”). (ECF Nos. 6-2 and 6-3, Ex. J, K.) Petitioner appealed, and
requested an extension of the deadline to file briefs. (ECF No. 6-3, Ex. L.) On July 13, 2016, the
BIA affirmed denial of asylum and withholding of removal but remanded for further proceedings
pursuant to the CAT. (Id., Ex. M.) A merits hearing was held on December 6, 2016, and the IJ
denied Petitioner’s application for relief pursuant to the CAT. (ECF No. 9.) Petitioner appealed
to the BIA, and his appeal is pending. (Id.)
The Visa Waiver Program
The VWP permits aliens from certain countries to enter the United States for ninety days
without a visa. Shehu v. Attorney General, 482 F.3d 652, 654 (3d Cir. 2007). Aliens who are
admitted under this program must forfeit their right to challenge the basis for removal, but they
may still apply for asylum, withholding of removal, and relief under the CAT. Id. (citing 8 U.S.C.
§ 1187(b)). Section 1187(b)(2) provides that an alien may not be provided a visa waiver under the
VWP program unless the alien waives any right “to contest, other than on the basis of an
application for asylum, any action for removal of the alien.” Therefore, VWP participants are
granted an asylum-only hearing. Id. at 655 (citing 8 C.F.R. § 208.2(c)(i)). If such relief is denied,
the VWP participant can be removed without further process. Id. (citing 8 C.F.R. § 217.4(a)(1)).
Denial of a VWP participant’s application for asylum, withholding of removal, and relief under
CAT, constitutes a final order of removal.
Id. (citing 8 U.S.C. § 1252(a)(1); 8 C.F.R. §
Procedures under the VWP are governed by 8 C.F.R. § 1208.2(c)(3).
1208.2(c)(3)(i), in pertinent part, limits VWP proceedings before an IJ to a determination of
whether the alien is eligible for asylum or withholding or deferral of removal, and whether asylum
shall be granted in the exercise of discretion.
The regulation also states, “[d]uring such
proceedings, all parties are prohibited from raising or considering any other issues, including but
not limited to issues of admissibility, deportability, eligibility for waivers, and eligibility for any
other form of relief.” Id.
VWP regulations also address the possibility of aliens fraudulently entering the program
by using false passports of participant countries. See Bayo v. Napolitano, 593 F.3d 495, 501 (7th
Cir. 2010) (citing 8 C.F.R. § 217.4(b)); see also In re Kanagasundram, 22 I. & N. Dec. 963, 964
(B.I.A.1999) (“[T]he provisions of 8 C.F.R. § 217.4 are not limited to aliens who are actually
nationals of [VWP] designated countries, but specifically encompass individuals who present
fraudulent and counterfeit travel documents from such countries.”)) “[A]pplying the terms of the
VWP to ineligible aliens may also confer on them the possible benefit in asylum cases of being
able to skip the credible-fear interview and proceed directly to an IJ.” Bayo, 593 F.3d at 502 (citing
Kanagasundram, 22 I. & N. Dec. at 964). In Bayo, the Seventh Circuit held that the Attorney
General, in balancing several factors in the course of interpreting the VWP statute, was entitled to
“adopt an approach that preserves the government's ability to remove aliens who fraudulently enter
under the VWP just as promptly as it can remove legitimate VWP entrants.” Id. at 502.
In the Matter of A.W.
In 2009, the BIA held that the statutory authority to detain an alien, who was a VWP
Violator, was found in 8 U.S.C. § 1187(c)(2)(E) (West Supp. 2008), not 8 U.S.C. § 1226 (2006).
See Matter of A.W., 25 I. & N. Dec. at 48, 2009 WL 8628885, at *3 (BIA 2009). The BIA noted
it was well established that IJs have the authority only to consider matters delegated to them by
the Attorney General and the Immigration and Nationality Act. Id. at *2. The authority to detain
an applicant was transferred from the Attorney General to the Secretary of Homeland Security
pursuant to the Homeland Security Act of 2002, assigning many of the functions previously
exercised by the Attorney General to the Secretary of Homeland Security. Id. at *2. The BIA
observed that the references to the Attorney General in section 217 of the INA now referred to the
Secretary of Homeland Security. Id. The BIA reasoned that “[b]ecause the Attorney General no
longer has authority over bond proceedings relating to aliens, like the applicant, who have been
admitted pursuant to the Visa Waiver Program, he cannot delegate any such authority to the
Immigration Judge.” Id.
8 U.S.C. § 1226(a) authorizes discretionary detention of all aliens during their removal
proceedings. Contant v. Holder, 352 F. App’x 692, 694 (3d Cir. 2009). Aliens detained under
Section 1226(a) may be released if they demonstrate they are not a danger to persons or property
and they are likely to appear for future removal proceedings. Id. at 695 (citing 8 C.F.R. §
236.1(c)(8)). Such aliens may request a bond redetermination hearing before an IJ, pursuant to 8
C.F.R. § 236.1(c)(8). An IJ may grant the request for bond redetermination if the alien’s
circumstances have materially changed since the prior bond redetermination. Id. (citing 8 C.F.R.
§ 1003.19(e)). Furthermore, the alien may appeal the IJ’s bond decision to the BIA. Id. at 696
(citing 8 C.F.R. § 236.1(d)(3)).
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. Detention without the
possibility of bond “for a reasonable period of time” pursuant to § 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. Pursuant to 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 later addressed the contours of a reasonable period of detention. In
Chavez-Alvarez, the Third Circuit noted that after six months of detention, “and certainly by the
time [the petitioner] had been detained for a 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.” Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469, 478 (3d Cir. 2015).
In Zadvydas v. Davis, the Supreme Court considered a due process challenge to detention
of aliens who had been admitted to the United States but who were under a final order of removal
pursuant to 8 U.S.C. § 1231(a)(6). 533 U.S. 678 (2001). Section 1231(a)(6) allows the Attorney
General discretionary authority to further detain an alien who has been ordered removed but has
not been removed during the 90-day statutory removal period. Id. at 699. In Zadvydas, the alien’s
detention was indefinite and potentially permanent. Id. at 690-91. To avoid finding the statute
unconstitutional, the Supreme Court read § 1231 to authorize detention beyond the 90-day removal
period only as reasonably necessary to secure the alien’s removal. Id. The Supreme Court
determined that six months is a presumptively reasonable period of detention. Id. at 689. Where
an alien’s removal was “no longer practically attainable” the detention no longer served the
purported immigration purpose. Id. An alien under those circumstances must be released if he
can show that there is no significant likelihood of his removal in the reasonably foreseeable future.
Statutory Basis for Detention
Petitioner contends the sole statutory authority for his detention is under 8 U.S.C. §
1226(a), which requires a bond hearing. (ECF No. 1, ¶4.) As noted, aliens detained under Section
1226(a) may request a bond redetermination hearing before an IJ, pursuant to 8 C.F.R. §
236.1(c)(8). Respondent submits that ICE makes the sole discretionary custody determination for
a VWP applicant pursuant to 8 C.F.R. § 1208.2(c)(3)(i), and the applicant is not entitled to any
additional custody determination before an immigration judge. (ECF No. 6 at 10-12, citing Matter
of A.W., 2009 WL 8628885, at *1 n. 1 (BIA 2009.))1
Petitioner contends the BIA’s interpretation of 8 C.F.R. § 1236.1(a)-(d) and 8 C.F.R. §
1208.2(c)(3)(i) is unreasonable and inconsistent with 8 C.F.R. § 1236.1(c)(11) and 8 C.F.R. §
1003.19(h). (ECF No. 1, ¶30.) Section 1236.1(c)(11) provides “[a]n immigration judge may not
exercise the authority provided in this section [apprehension, custody and detention] and the
review process described in paragraph (d) of this section [appeals from custody decisions] shall
not apply, with respect to any alien beyond the custody jurisdiction of the immigration judge as
The Court notes that neither party addressed the authority to detain aliens treated as applicants
for admission under 8 U.S.C. §§ 1225(a)(1) and (b)(1)(B)(iii)(IV), which may be relevant to
Petitioner’s circumstances. Pursuant to § 1225 (b)(1)(B)(iii)(IV), applicants for admission “shall
be detained pending a final determination of credible fear of persecution, and, if found not to have
such a fear, until removed.”
provided in § 1003.19(h) of this chapter.” 8 C.F.R. § 1003.19(h)(ii) states, in relevant part,
“[n]othing in this paragraph shall be construed as prohibiting an alien from seeking a
redetermination of custody conditions by the Service in accordance with part 1235 or 1236 of this
Petitioner acknowledges that § 1208.2(c)(3)(i) prohibits parties from raising any
substantive issue or any other form of relief in asylum-only proceedings. (Id., ¶27.) Bond
hearings, however, are purely procedural. (Id. ¶26.) Thus, Petitioner contends:
8 C.F.R. § 1208.2[c](3)(i) provides that asylum-only proceedings
“shall be conducted in accordance with the same rules of procedure
as proceedings conducted under 8 CFR part 1240, subpart A [regular
removal proceedings].” Thus, under this regulation, the regular
bond provisions of 8 C.F.R. § 1236.1 and 8 C.F.R. § 1003.19 should
apply to asylum-only proceedings as bond is clearly procedural and
does not relate to the substantive relief of asylum.”
(Id.) Respondent asserts 8 C.F.R. § 1236 pertains only to removal proceedings and not VWP
proceedings. (ECF No. 9 at 2.)
Pursuant to the Supreme Court’s holding in Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., an agency’s construction of a statute is permissible and given controlling
weight unless it is arbitrary, capricious, or manifestly contrary to the statute. 467 U.S. at 844.
“The judiciary” must “afford an agency discretion to interpret ambiguous provisions of the
agency's organic or enabling statute.” Swallows Holding, Ltd. v. C.I.R., 515 F.3d 162, 169 (3d Cir.
2008) (citing Chevron, 467 U.S. at 842-43). If a statutory provision is ambiguous, “such ambiguity
is viewed as an implicit congressional delegation of authority to an agency, allowing the agency
to fill the gap with a reasonable regulation.” Id. (quoting MCI Telecomm. Corp. v. Bell Atlantic–
Pa., 271 F.3d 491, 515–16 (3d Cir. 2001). Courts must “accord  Chevron deference [to the BIA]
as it gives ambiguous statutory terms ‘concrete meaning through a process of case-by-case
adjudication.’’” Smriko v. Ashcroft, 387 F.3d 279, 297 (3d Cir. 2004) (quoting INS v. Aguirre–
Aguirre, 526 U.S. 415, 425 (1999)). To accord Chevron deference, a court first must ask whether
“ʽthe statute is silent or ambiguous with respect to the specific issue’” before it; if so, ‘the question
for the court is whether the agency's answer is based on a permissible construction of the statute.’”
Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (quoting Chevron, 467 U.S. at 843.))
This Court has found only one decision addressing the statutory issue presented here.2 In
Neziri v. Johnson, the petitioner, an Albanian citizen, was admitted to the United States under the
VWP by using a false Italian passport. Civ. Action No. 15-cv-13282-IT, 2016 WL 2596017 at *1.
(D. Mass. May 5, 2016). After cooperating with the FBI in a criminal investigation, ICE gave
Neziri deferred action status and allowed him to remain in the United States and obtain
employment authorization. Id. After Neziri was twice arrested for operating a vehicle under the
influence, ICE revoked Neziri’s deferred action status and ordered him removed as a VWP
The respondent argued that Neziri was not being detained pursuant to 8 U.S.C. § 1226, but
that his detention was pursuant to 8 U.S.C. § 1187(c)(2). Id. at *2. The respondent asked the court
to defer to the BIA’s decision in Matter of A.W., and hold that an IJ does not have jurisdiction to
redetermine the conditions of custody of an alien admitted pursuant to the VWP. Id.
The court in Neziri addressed the BIA’s construction of 8 U.S.C. § 1226 in light of
Chevron. Noting that 8 U.S.C. § 1226 explicitly provides for detention and release of aliens during
their removal proceedings, the court in Neziri found that Congress had spoken directly to the
Although the issue was raised in Bacuku v. Aviles, the Court did not reach the issue of whether
the petitioner was detained under 8 U.S.C. § 1187 or 8 U.S.C. § 1226(c) because the factual
circumstances surrounding the petitioner’s entry were hazy, and the respondent conceded that the
Due Process Clause limits detention of VWP entrants claiming asylum to a reasonable period of
time. Bacuku, Civ. Action No. 15-2543(MCA), 2016 WL 818894 (D.N.J. March 2, 2016).
question at issue, and the regulations implementing 8 U.S.C. § 1226(a) provide for a bail hearing
before an IJ. Neziri, 2016 WL 2596017, at *2. The court rejected the BIA’s finding that “[t]he
Attorney General no longer has statutory authority over bond proceedings relating to aliens . . .
who have been admitted pursuant to the Visa Waiver Program.” Id. at *3.
The court in Neziri recognized that the Homeland Security Act of 2002 transferred virtually
all immigration enforcement and administrative functions vested in the Attorney General to the
Secretary of Homeland Security, but also found that there was no reason why the Secretary of
Homeland Security could not delegate authority to IJs under 8 U.S.C. § 1226(a). Id. The court
further noted there is nothing in 8 U.S.C. § 1187(c)(2)(E) about detaining aliens. Id.
This Court agrees with the reasoning of the Neziri court - the BIA arbitrarily and
capriciously interpreted the effect of transferring the delegation of immigration enforcement and
administrative functions from the Attorney General to the Secretary of Homeland Security. The
transfer of authority did not expressly strip the Secretary of Homeland Security of the authority to
delegate to an IJ the powers under 8 C.F.R. § 1236.1(d) previously delegated to the Attorney
General, and there is no reason to believe there was an intention to do so.
Furthermore, a plain reading of 8 C.F.R. § 1208.2(c)(3)(i) suggests that it limits only the
substantive relief from removal for VWP entrants or violators. Allowing VWP violators who are
in custody to request a bond redetermination hearing under 8 C.F.R. § 1236.1(d) does not frustrate
the intent of the VWP program to limit the types of substantive relief available. A bond
determination is a procedural, not substantive, function.
This Court, therefore, concludes that Petitioner is detained pursuant to 8 U.S.C. § 1226(a),
and he may seek a bond redetermination pursuant to 8 C.F.R. § 1236.1(d). The Court declines
Petitioner’s invitation to exercise jurisdiction over a bond hearing. Given the holding, the Court
need not reach the issue of whether due process requires that Petitioner be afforded a bond hearing.
For the reasons discussed above, the Court will grant Petitioner’s petition for a writ of
habeas corpus, and order Respondent to provide Petitioner a bond redetermination hearing in
accordance with 8 C.F.R. § 1236.1(d)(1) and 8 C.F.R. § 1003.19.
An appropriate Order follows.
Date January 5, 2017
At Newark, New Jersey
s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge
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