QUEZADA v. GREEN

Filing 6

OPINION. Signed by Judge Susan D. Wigenton on 1/25/2017. (seb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MICHAEL QUEZADA,

Civil Action No. 16-5687 (SDW)

Petitioner,
v.

OPINION

WARDEN CHARLES GREEN,
Respondent.

WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Michael
Quezada, 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. 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.

I. BACKGROUND
Petitioner, Michael Quezada, is a native and citizen of the Dominican Republic who
entered this country at some unknown point prior to 2000. (Document 1 attached to ECF No. 4 at
2-3). On December 14, 2000, Petitioner became a lawful permanent resident of the United States.
(Id.). Since that time, Petitioner has accrued a lengthy criminal record, which in relevant part
includes two convictions which are at issue in his removal proceedings: first, in January 2011 he
was convicted of conspiracy to commit theft by unlawful taking in the Superior Court of New
Jersey, Middlesex County; and in March 2015 he was convicted in that same court of attempting
to fraudulently use a credit card, for which he received a five year prison sentence. (Document 2
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attached to ECF No. 4 at 4; Document 3 attached to ECF No. 4). Based on these convictions,
Petitioner was issued a notice to appear on January 27, 2016, and was taken into immigration
custody on that same date. (ECF No. 1 at 2; Documents 1-2 attached to ECF No. 4). Petitioner
has remained detained since that date. (Document 5 attached to ECF No. 4).
Petitioner apparently first appeared before an immigration judge on March 2, 2016, at
which time his proceedings were continued to permit Petitioner to obtain representation. (Id. at
2). Petitioner returned to the immigration court on April 27, but his matter was again continued
on that date, this time at the request of the Government. (Id. at 3). On June 20, 2016, Petitioner
returned to the immigration court, but his proceedings were once again continued because the
assigned immigration judge took unplanned leave. (Id.). Petitioner thereafter filed a motion to
terminate removal proceedings on June 27, 2016, in which Petitioner argued that he was entitled
to derivative citizenship, which was ultimately denied in August 2016. (Id.). While Petitioner was
scheduled to appear on July 1, July 11, August 24, and September 14, 2016, each of those hearings
was continued to give Petitioner more time to prepare for a merits hearing and to provide him time
to prepare an application for relief from removal. (Id. at 4-5). Petitioner thereafter filed an
application for cancellation of removal. (Id.). Petitioner appeared before the immigration court
again on October 20, 2016, but his matter was rescheduled once again so that a merits hearing
could be held on that cancellation application. (Id. at 5). That hearing was apparently scheduled
for December 20, 2016. (Id.). It is unclear what occurred on December 20, 2016, but nothing in
the current record suggests that Petitioner is subject to a final order of removal at this time.

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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”
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 the record indicates that Petitioner is not yet subject to a final order of removal and is
being held based on his prior criminal convictions, the parties agree that Petitioner is currently
detained pursuant to 8 U.S.C. § 1226(c). The continued propriety of Petitioner’s detention without
an individualized 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.

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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 court declined to adopt a bright
line rule for determining reasonableness based solely on 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 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 from Chavez-Alvarez in two
respects: first, Petitioner is responsible for several months of continuances and thus contributed to
the length of his detention, and second because Petitioner has only limited avenues of relief
available to him following the denial of his motion seeking the termination of removal proceedings
by the immigration court, and Petitioner is unlikely to succeed on these claims for limited relief
from removal to his country of birth. Although the Government mentions the denial of Petitioner’s
motion for termination of removal proceedings, and suggests that Petitioner’s application or
cancellation of removal is unlikely to succeed given his past criminal history, the Government
does not expressly argue that Petitioner has acted in bad faith in his immigration proceedings, but
instead that Petitioner’s claims are less meritorious and less complicated than those at issue in
Chavez-Alvarez.

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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
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

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claims that were capable of providing some relief, however limited, and no bad faith or dilatory
motive has been shown.” Madera v. Green, No. 16-5055, 2016 WL 7424487, at *3 (D.N.J. Dec.
23, 2016) (citing Rodriguez, 2016 WL 7175597 at *3).
In this matter, Petitioner has been held without a bond hearing and without a final order of
removal for approximately a year. While Petitioner may have been responsible for several
continuances in his immigration proceedings, it is clear from the record that the Government and
immigration court itself have likewise been responsible for several of the continuances which
occurred in this matter. Given this split and Petitioner’s multiple applications for relief, nothing
before this Court suggests a dilatory motive on Petitioner’s part. Although the Government argues
that the denial of Petitioner’s motion for termination of removal proceedings and the uphill battle
he faces in seeking cancellation of removal make his case distinguishable from Chavez-Alvarez
because Petitioner lacks a strong claim which would completely prevent his removal from this
country, this Court finds that the Government has failed to establish that Petitioner has acted in
bad faith in pursuing relief from removal. It instead appears from the record before this Court that
Petitioner has sought in good faith to challenge the Government’s proofs by raising real issues and
has sought what limited avenues of relief are available to him through both his motion for
termination and his application for cancellation of removal. That Petitioner’s motion was denied
and that he faces a difficult road in seeking cancellation of removal are insufficient to convince
this Court that those applications were raised in bad faith.

Given those findings, and the

approximately one year of detention Petitioner has faced during the pendency of his removal
proceedings, this matter is not materially distinguishable from Rodriguez, Madera, 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

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particularized determination as to his danger to the community and potential flight risk.” Madera,
2016 WL 7175597 at *3. 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: January 25, 2017

s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge

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