CARDELLA POYCE v. TSOUKARIS et al

Filing 10

OPINION. Signed by Judge Kevin McNulty on 3/9/17. (DD, ) N/M

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROGER CARDELLA POYCE,
Petitioner,

Civ. No. 16-8676 (KM)

V.

CHARLES GREEN,

OPINION

Respondent.

KEVIN MCNULTY, U.S.D.J.
I.

INTRODUCTION

The petitioner, Roger Cardella Poyce, is an immigration detainee currently lodged at the
Essex County Correctional Facility in Newark, New Jersey. He is proceeding pro se with a
petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2241. This habeas petition challenges

his continued immigration detention. For the following reasons, the habeas petition will be
denied.
II.

BACKGROUND

Mr. Poyce is a native and citizen of Jamaica. He was previously convicted in New Jersey
in 2013 of possessionldistribution!manufacturing/dispensing of a controlled substance. He has
been in immigration detention since August 2014. According to Mr. Poyce, an Immigration
Judge (“IJ”) ordered him removed in January, 2017. Mr. Poyce states that he has appealed that IJ
order of removal to the Board of Immigration Appeals (“BIA”).
While those administrative proceedings were progressing, Mr. Poyce filed a federal
habeas petition in this Court. (See No. 16-0349) On March 7, 2016, this Court ordered that Mr.
Poyce be given a bond hearing before an IJ. Subsequently, in May, 2016, an IJ denied Mr. Poyce

bond. Mr. Poyce appealed that bond denial to the BIA. The BIA affirmed the denial of bond in
September, 2016.
In November, 2016, Mr. Poyce filed this federal habeas petition. Mr. Poyce asserts that
his immigration detention has been so prolonged as to be un reasonable. He seeks his immediate
release on bond or an order of supervision.
III.

DISCUSSION

Mr. Poyce alleges that his order of removal is currently on appeal to the BIA. When an
order is on administrative appeal, it is not yet regarded as final. See 8 C.F.R.

§ 1241.1(a) (order

of removal becomes final upon dismissal of appeal by the BIA). Mr. Poyce, then, is still
considered a pre-removal immigration detainee.
The Court’s prior opinion summarized the standards governing pre-removal detention.
The Attorney General has the authority to detain aliens in removal proceedings before the
issuance of a final order of removal, known as the “pre-removal” period. Pre-removal detention
of an alien is governed by Section 1226 of Title 8 of the United States Code. Section 1226(a)
permits the Attorney General to detain or release an alien pending a decision on whether the
alien is to be removed from the United States:
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) of this section 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;
(B) conditional parole;
8 U.S.C.

§ 1226(a). “Except as provided in subsection (c)” is included because, under Section

1226(c), certain criminal aliens are subject to mandatory pre-removal detention:
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The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any offense
covered in section 11 82(a)(2) of this title,
(B) is deportable by reason of having committed any offense
covered in section 1227(a)(2)(a)(ii), (A)(iii), (B), (C), or (D) of this
title,
(C) is deportable under section 1 227(a)(2)(A)(i) of this title on the
basis of an offense for which the alien has been sentence to a term
of imprisonment of at least 1 year, or
(D) is inadmissible under section 11 82(a)(3)(B) of this title or
deportable under section 1 227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is
release on parole, supervised release, or probation, and without
regard to whether the alien may be arrested or imprisoned again for
the same offense.
8 U.S.C.

§

l226(c)(1).

In Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir.201 1), the United States Court of
Appeals for the Third Circuit established a framework for analyzing the permissibility of pre
removal detention:
[Title 8, United States Code, Sectionl 1226(c) contains an implicit
limitation on reasonableness: the statute authorizes only mandatory
detention that is reasonable in length. After that, § 1226(c) yields
to the constitutional requirement that there be a further,
individualized, inquiry into whether continued detention is
necessary to carry out the statute’s purpose.... Should the length of
[an alien’sj detention become unreasonable, the Government must
justify its continued authority to detain him at a hearing at which it
bears the burden of prooE
656 F.3d at 235. Diop did not state a specific length of pre-removal-order detention beyond
which a petitioner would be entitled to a bond hearing. See fri at 234; see also Carter v. Aviles
No. 13—3607, 2014 WL 348257, at *3 (D.N.J. Jan. 30, 2014) (“[T]he Third Circuit has not set a
‘universal point’ when mandatory detention under

§

1226(c) is unreasonable.”) (citing Leslie

Attorney Gen., 678 F.3d 265, 270—71 (3d Cir.2012)); Barcelona v. Napolitano, No. 12—7494,
2013 WL 6188478, at *1 (D.N.J. Nov. 26, 2013) (“The Court of Appeals in Diop declined to

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1’.

adopt a rule that a hearing was required after a certain fixed amount of time in pre-removal
detention.”) (citation omitted). Instead, the Third Circuit noted that “[rleasonableness, by its very
nature, is a fact-dependent inquiry requiring an assessment of all of the circumstances of a
particular case.” Diop, 656 F.3d at 234. A reasonableness determination “must take into account
a given individual detaine&s need for more or less time, as well as the exigencies of a particular
case.” Id However, “the constitutional case for continued detention without inquiry into its
necessity becomes more and more suspect as detention continues past [certain] thresholds.”
Chavez—Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 474 (3d Cir. 2015) (quoting Diop,
656 F.3d at 232, 234). Indeed, in Chavez—Alvarez, the Third Circuit noted with respect to the
circumstances of that particular case that sometime after six months, and certainly within a year,
the burden to the petitioner’s liberties would outweigh any justification to detain the petitioner
without a bond hearing. See id. at 478. A petitioner’s bad faith has at least the potential to impact
whether a bond hearing should be ordered. See Chavez-Alvarez, 783 F.3d at 476 (“Because we
conclude that Chavez-Alvarez did not act in bad faith, we do not need to decide here whether an
alien’s delay tactics should preclude a bond hearing.”). Additionally, it is worth noting that in the
pre-removal context under Diop and Chavez-Alvarez, the proper relief is to order a bond hearing
before the Immigration Judge, not release the petitioner from immigration detention. See
Morrison v. Elwood, No. 12-4649, 2013 WL 323340, at *1 (D.N.J. Jan. 28, 2013) (“This Court’s
power to entertain habeas applications ensues from the narrowly-tailored mandate of 28 U.S.C.
2241, which

—

with respect to the claims raised by pre-removal order alien detainee’s

allows

relief limited to a directive of a bond hearing.”) (citing Diop, 656 F.3d 22!).
In response to Mr. Poyce’s earlier

§ 2241

habeas petition, the Court cited these

authorities and ordered that a bond hearing take place before an IJ. That bond hearing has now

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§

taken place. Although the result, denial of release, was surely disappointing to Mr. Poyce, he has
received the remedy that is available to him in this Court. ‘l’he Court has the power to order a
bond hearing, but where a petitioner has already received a bona tide bond hearing before an IJ,
the Court does not have the power to second guess the IJ’s bond denial. See 8 U.S.C. 1226(e)
(“The Attorney GeneraPs discretionary judgment regarding the application of this section shall
not be subject to review. No 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.

“)

(emphasis added); Reeves v. Johnson, No. 15-1962, 2015 WL

1383942, at *3 (D.N.J. Mar. 24, 2015) (“The present petition might be liberally construed as
containing a claim that the IJ erred in finding Petitioner to be a flight risk because he has been a
law-abiding citizen for many years after his criminal conviction. This Court, however, does not
have jurisdiction over discretionary agency decisions.”) (citing Pisciotta v. Ashcrofl, 311 F.
Supp. 2d 445, 454 (D.N.J. 2004) (Greenaway, J.)); see also Mendoza v. Green, No. 16-1447,
2016 WL 4208439, at *2 (D.N.J. Aug. 8, 2016) (denying habeas petition where petitioner has
already gotten a bond hearing which is the only relief he can get in the pre-removal immigration
detention context). There is no allegation by Mr. Poyce that he did not receive a bona fide bond
hearing before the Ii. See Harris

i

Herrey, No. 13-4365, 2013 WL 3884191, at *1 (D.N.J. July

26, 2013) (“After a bona fide bond hearing, the immigration judge might grant, or deny, release
on bond. I would not have the power to overrule such a denial of release after a bona fide
hearing.”).
Because I have already granted the relief that Mr. Poyce seeks, his current, successive
habeas petition will be denied.

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IV.

CONCLUSION

For the foregoing reasons, the habeas petition will be denied. An appropriate order will
be entered.

A(L

DATED: March 9, 2017

KE INMCNULTY
United States District Judge

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