AMAYA QUINTEROS v. GREEN
OPINION. Signed by Judge John Michael Vazquez on 04/26/2017. (ek)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HUGO ALEXANDER AMAYA
Civ. No. 16-5718 (JMV)
HUGO ALEXANDER AMAYA QUINTEROS
Essex County Correctional Facility
354 Doremus Ave.
Newark, NJ 07102
Petitioner, pro se
United States Attorney’s Office
970 Broad Street, Suite 700
Newark, NJ 07102
On behalf of Respondent
VAZQUEZ, United States District Judge
Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on
September 19, 2016, challenging his prolonged detention in the custody of Immigration and
Customs Enforcement. (“ICE”). (ECF No. 1.) He has been in ICE detention since March 3, 2016,
and is confined in Essex County Correctional Facility in Newark, New Jersey. (Id.) The Court
ordered an answer to the petition (ECF No. 4), and on March 13, 2017, Respondent submitted a
response (ECF No. 5), requesting that the petition be dismissed as moot because Petitioner
received a bond hearing on May 18, 2016.
Petitioner is a native and citizen of El Salvador who entered the United States at an
unknown place and time, without being admitted or paroled after inspection by an Immigration
Officer. (ECF No. 5-1 at 2.) Petitioner was arrested by ICE on March 5, 2016, and charged as
inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i). Petitioner was identified as a member of the
criminal gang MS-13. (ECF No. 5-1 at 6.) He was taken into custody under 8 U.S.C. § 1226(a).
(ECF No. 5-1 at 12-15.)
Petitioner requested redetermination of ICE’s custody decision. (Id. at 12.) A custody
hearing was held on May 18, 2016, and the immigration judge (“IJ”) denied the request for change
in custody status, finding Petitioner to be a danger to the community. (Id. at 17.) Petitioner
reserved appeal of the custody decision. (Id.) However, according to Respondent, Petitioner never
appealed the custody determination with the BIA. (ECF No. 5 at 2.)
Petitioner filed the present petition for writ of habeas corpus on September 9, 2016. (ECF
Petitioner argued that his “mandatory” detention for more than six months was
unreasonably prolonged, in violation of due process. (Id. at 3.) For relief, Petitioner seeks
immediate release or a bond hearing. (Id.) Petitioner was ordered removed from the United States
on October 6, 2016. (ECF No. 5-1 at 19-20.) Petitioner appealed the removal order. (Id. at 23.)
The appeal remains pending. (ECF No. 5 at 2.)
Respondent contends the petition is moot because Petitioner has received the only relief he
may be entitled to, a bond hearing. (Id. at 2.) Respondent further maintains that this Court lacks
jurisdiction to review the IJ’s custody decision. (Id. at 3.) Petitioner is not precluded from seeking
a bond redetermination from an IJ, if he can show a material change in circumstances since the
prior bond redetermination. (Id.)
Here, Petitioner is not subject to mandatory detention, rather he is subject to discretionary
detention under 8 U.S.C. § 1226(a). (ECF No. 5-1 at 12-15.) 8 U.S.C. § 1226(a) provides, in
(a) Arrest, detention, and release
On a warrant issued by the Attorney General, an alien may be
arrested and detained pending a decision on whether the alien is to
be removed from the United States. Except as provided in
subsection (c) and pending such decision, the Attorney General-(1) may continue to detain the arrested alien; and
(2) may release the alien on-(A) bond of at least $1,500 with security approved
by, and containing conditions prescribed by, the
Attorney General; or
(B) conditional parole . . .
Petitioner requested and received a review of the IJ’s custody determination. (ECF No. 51 at 15, 17.)
Petitioner seeks relief under Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011);
Chavez-Alvarez v. Warden York County Prison, 783 F3d 469 (3d Cir. 2015); and Zadyvdas v.
Davis, 533 U.S. 678 (2001). Each of these cases is distinguishable. In Zadvydas, the Supreme
Court held, with respect to aliens who were admitted to the United States but subsequently ordered
removed and detained pursuant to 8 U.S.C. § 1231(a)(6), that the post-removal-period statute
authorizes the Attorney General to detain a removable alien only for a period of time reasonably
necessary to secure the alien’s removal. 533 U.S. 678, 682 (2001). Petitioner was never admitted
to the United States, and he is not detained pursuant to § 1231(a)(6). The Zadvydas standard does
not apply here.
In Diop, the Third Circuit held that when mandatory detention of criminal aliens under 8
U.S.C. § 1226(c) becomes unreasonably prolonged, “the Due Process Clause demands a hearing,
at which the Government bears the burden of proving that continued detention is necessary to
fulfill the purposes of the detention statute.” 656 F.3d 221, 233. The Government must justify
“its actions at a hearing inquiring into whether continued detention is consistent with the law’s
purposes of preventing flight and dangers to the community.” Id. at 232.
In Chavez-Alvarez, like Diop, the petitioner challenged his prolonged mandatory detention
under 8 U.S.C. § 1226(c), without a bond hearing. 783 F.3d at 472 (“Chavez–Alvarez says that
the Government is violating his due process rights by detaining him for an unreasonable amount
of time without conducting a hearing at which he would have the opportunity to be released on
bond.”) Here, Petitioner had a custody hearing, and he was denied bond based on a finding that
he was a danger to the community. (ECF No. 5-1 at 17.) He is not indefinitely detained because
he can be removed when his removal order is finally adjudicated. See Contant v. Holder, 352 F.
App’x 692, 696 (3d Cir. 2009).
Additionally, if Petitioner’s circumstances have changed
materially since his May 18, 2016 custody determination, he can obtain a bond redetermination
hearing before an IJ, and the IJ’s decision is appealable to the BIA. Id. at 695-96. Therefore,
Petitioner’s Due Process Claim fails because his detention is not indefinite, and he has an avenue
to seek release, if his circumstances have changed materially since his prior bond redetermination
hearing, he may seek a rehearing.
Finally, under 8 U.S.C. § 1226(e), “[n]o court may set aside any action or decision by the
Attorney General under this section regarding the detention or release of any alien or the grant,
revocation, or denial of bond or parole.” Therefore, this Court lacks jurisdiction to review the IJ’s
custody determination. See Pisciotta v. Ashcroft, 311 F.Supp.2d 445, 453 (D.N.J. 2004) (habeas
court lacked jurisdiction to review BICE’s determination to detain alien upon reopening removal
proceedings or the decision to revoke prior custody status); Pena v. Davies, Civ. No. 157291(KM), 2016 WL 74410, at *2 (D.N.J. Jan. 6, 2016) (habeas court cannot second guess
discretionary decision of IJ to deny the petitioner’s release on bond.)
For the reasons discussed above, Petitioner’s discretionary detention under § 1226(a),
beginning March 3, 2016, for which he received a bond redetermination hearing before an IJ, does
not violate his right to due process. Therefore, the Court will deny the petition.
An appropriate Order follows.
Dated: April, 2017
At Newark, New Jersey
s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge
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