ROSE v. GREEN

Filing 7

OPINION. Signed by Judge Jose L. Linares on 2/7/17. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CLIVI ROSE,

Civil Action No. 16-5440 (JLL)

Petitioner,
OPINION

V.

JOHN TSOUKARIS, et al.,
Respondents.

LINARES, District Judge:

Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Clive
Rose, 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. 6). Petitioner chose not to file a

reply. For the following reasons, this Court will deny the petition without prejudice.

I. BACKGROUND

Petitioner, Clive Rose, is a native and citizen of the United Kingdom who originally entered
this country in 1975. (Document 1 attached to ECF No. 6 at 11). Petitioner thereafler became a
legal permanent resident of the United States. (Id.). Throughout his time in this country, Petitioner
has amassed a significant criminal history, which in relevant part includes March 2006 convictions
for possession of cocaine in violation of N.J. Stat. Ann.

§ 2C:35-5(a)(1), and possession of cocaine

with the intent to distribute in violation of N.J. Stat. Ann.

§ 2C:35-5(a)(1) and 2C:35-5(b)(2). (Id.

at 11-57). On March 11, 2016, following his release from state custody, Petitioner was taken into
immigration custody and placed into removal proceedings based on his criminal history. (Id. at

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10-11). Petitioner has remained in immigration custody since that date. (Id.; Document 3 attached
to ECF No. 6 at 2-6).
Petitioner was first scheduled to appear before the immigration courts on April 6, 2016,
but that hearing was continued because of operational and security issues in the courts. (Document
3 attached to ECF No. 6 at 3). Petitioner was thereafier returned to the immigration court for a
hearing on April 25, 2016, but requested a continuance so that he could acquire an immigration
attorney to represent him. (Id.). Petitioner appeared before an immigration judge again on June 8
and July 13, 2016, but each hearing was continued again so that Petitioner could seek
representation. (Id. at 3-4). Petitioner was scheduled for another hearing in August 2016, but that
hearing was postponed because Petitioner was apparently not brought to the court by immigration
officials for some unknown reason. (Id. at 4). Petitioner was, however, brought back to the
immigration courts in both September and October 2016, but on each date again requested and
was granted a continuance so he could continue to seek representation. (Id.). Petitioner was
thereafier scheduled to return to the immigration courts on November 29, 2016. (Id.). Neither
party has provided this Court with any information regarding what has occurred since November
29, 2016, however. Because no actual hearing had taken place as of November 2016, it is not clear
what, if any, claims for relief from removal Petitioner may have from the record provided by the
parties. (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.

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§

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 Zathydas v. Davis, 533 U.S. 678, 699 (2001).

B. Analysis

Because it is clear from the record that Petitioner is being held based on his past criminal
record and is not yet subject to a final order of removal, he is currently detained pursuant to 8
U.S.C.

§ 1226(c). The propriety of Petitioner’s continued detention is therefore controlled by the

Third Circuit’s decisions in under Diop v. ICE/Homeland Sec., 656 F.3d 221, 231-35 (3d Cir.
2011), and Chavez-Alvarez v. Warden York Coitnty 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 under the circumstances is a fact specific inquiry “requiring an assessment
of all of the circumstances of a given case.” Id. at 234. Under Diop, the reasonableness of a given
period of detention is thus “a function of whether it is necessary to fulfill the purpose of the
statute.” Id.
Because the inquiry into the reasonableness of mandatory detention is fact specific, the
Diop court did not provide a specific length of time beyond which a petitioner’s detention would

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become unreasonable based solely on the passage of time. See 656 f.3d at 234; see also Carter v.
Aviles, No. 13-3607, 2014 WL 342257, at *3 (D.NJ. Jan. 30, 2014). While the Third Circuit has
refused to adopt a bright line rule for determining the reasonableness of continued detention under

§ 1226(c), the Court of appeals did provide guidance on that question in Chavez-Alvarez. In
C’havez-Alvarez, the Third Circuit held that, at least where the Government has not shown bad

faith on the part of the petitioner, “beginning sometime afier 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
outweighed any justification for using presumptions to detain him without bond to further the goals
of the statute.” 783 f.3d at 478.
In this case, the Government argues that, while Petitioner has at this point been held for
just under eleven months without a bond hearing, the facts of this matter are clearly distinguishable
from those in Chavez-Alvarez and that Petitioner is therefore not entitled to relief through his
cuffent habeas petition.

In making that argument, the Government specifically argues that

Petitioner has been responsible for the vast majority of the delays in his immigration case, in each
instance asking for more time to acquire a lawyer, and that because Petitioner has yet to acquire
counsel afier apparently trying to do so for months on end, Petitioner has yet to provide any basis
for relief from removal and has thus not yet provided a good faith basis for disputing his removal
before the immigration courts.
As this Court has explained:
The question before this Court, then, is whether Petitioner’s
continued detention is distinguishable from the situation in Chavez
Alvarez. In that case, the Third Circuit specifically held 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
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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 even where
the Government itself acted reasonably and is not responsible for the
delays in the conclusion of an alien’s immigration proceedings. Id.
Turning to the question of whether reasonableness hinged on
the way the Petitioner conducted himself in immigration
proceedings, the Chavez-Alvarez panel did observe that “certain
cases might be distinguishable [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. That panel, however, also
observed that it did “not need to decide whether an alien’s delay
tactics should preclude a bond hearing” where the court did 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 instead is a fact specific inquiry requiring consideration
of whether the alien has presented “real issues” in his immigration
challenge, such as 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 detennine reasonableness, and the Court must weigh
all available relevant information in determining whether the
reasonableness “tipping point” has been reached.
Cerda-Torres v. Green, No. 16-4194, 2016 WL 7106023, at *23 (D.N.J. Dec. 6, 2016).
Petitioner’s immigration proceedings are clearly distinguishable from both Chavez-Alvarez
and Leslie. Although Petitioner has been held for a considerable period of time, nearly eleven
months, it is clear that Petitioner is responsible for the vast majority of the delay in this matter, in
each instance stating an intention to acquire legal counsel, but failing to do so despite several
months’ worth of continuances provided for that purpose.

Likewise, because Petitioner has

prevented his immigration proceedings from even beginning as of November 2016, and because
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Petitioner has declined to file a reply brief in this matter, this Court cannot say that Petitioner has
presented “real issues” in his immigration proceedings sufficient to indicate that he is not acting
in bad faith in delaying his removal proceedings. See Chavez-Alvarez, 783 f.3d at 486. Instead,
it appears that Petitioner’s is just the sort of case which the Chavez-Alvarez panel observed would
be distinguishable because Petitioner is merely “gaming the system to delay [his] removal” and
Petitioner should therefore “not be rewarded a bond hearing [he] would not otherwise get under
the statute.” Id. Because Petitioner has delayed even the onset of his removal proceedings for
months on end, and because Petitioner had, as of November 2016, failed to present any “real
issues” to the immigration courts sufficient to show that he was acting in good faith in delaying
his immigration proceedings, this Court finds that Petitioner’s detention is distinguishable from
that in Leslie and Oiavez-Alvarez, and that Petitioner is therefore not entitled to a bond hearing at
this time. Id. Petitioner’s habeas petition shall therefore be denied without prejudice.

III. CONCLUSION

F or the reasons expressed above, this Court will deny Petitioner’s petition for a writ of
habeas corpus (ECF No. 1) without prejudice. An appropriate order follows.

/

HoØ
Uted States District Judge

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