REDWAY v. TSOUKARIS et al

Filing 8

OPINION. Signed by Judge Kevin McNulty on 02/17/2017. (ek)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
OWEN BARRINGTON REDWAY,
Petitioner,

Civ. No. 16-8678 (KM)

V.

CHARLES GREEN,

OPINION

Respondent.

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

INTRODUCTION

The petitioner, Owen Barrington Redway, 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.

For the following reasons, the

habeas petition will be denied without prejudice.
II.

BACKGROUND

Mr. Redway is a native and citizen of Jamaica. He entered the United States in 1978. Mr.
Redway was previously convicted in New Jersey of possession of a weapon for a unlawful
purpose. On September 5, 2015, he was placed into immigration detention.
On March 28, 2016, Mr. Redway was ordered removed by an Immigration Judge (“IJ”).
Mr. Redway appealed that order to the Board of Immigration Appeals (“BIA”). The BIA
dismissed Mr. Redway’s appeal on August 25, 2016. (See Dkt. No. 7-1)
Mr. Redway filed this habeas petition in November, 2016. He seeks his immediate
release from immigration detention on reasonable bail or an order of supervision. Respondent
filed a response in opposition to the habeas petition on December 16, 2016. On January 19, 2017,
this matter was reassigned from District Judge Salas to me.

Respondent’s initial response did not address whether petitioner was entitled to habeas
relief under Zadvydas v. Davis, 533 U.S. 678 (2001). Therefore, on January 24, 2017, I ordered
respondent to file a supplemental response. On February 2, 2017, respondent did so, and the
petitioner’s time to file a supplemental reply has now expired, so the matter is fully briefed.
III.

DISCUSSION

A. Review of Bond Denial
I first dispose of a preliminary issue. Mr. Redway filed an earlier federal habeas corpus
petition. (See No. 16-2005). In that case, I granted Mr. Redway’s request for a bond hearing
before an IJ. (See id. Dkt. No. 4) An IJ denied release on bond on June, 16, 2016. (See id. Dkt.
No.6 at p.3)
I will liberally construe Mr. Redway’s habeas petition as also seeking this Court’s review
of the IJ’ denial of bond in June 2016. This Court can—and did-----order a bond hearing, but it
5
does not have the power to second guess the discretionary decision of the IJ to deny Mr. Pena’s
release on bond. See 8 U.S.C. 1226(e) (“The Attorney General’s 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—1 962, 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. Ashcroft, 311 F. Supp. 2d 445, 454 (D.N.J. 2004) (Greenaway,
J.)). Furthermore, there is no allegation by petitioner that he did not have a bona fide bond

2

hearing before the U. See Harris v. Herry, 2013 WL 2884191, 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.”)
Therefore, Mr. Redway fails to show that he is entitled to habeas relief with respect to his bond
denial by the IJ.
B. Pre-removal Immigration Detention
I move on to Mr. Redway’ s petition for release from immigration detention on bond
because of the length of time he has been in pre-removal immigration detention. The Attorney
General has the authority to detain aliens in removal proceedings before the issuance of a final
order of removal. This period of detention is known as the “pre-removal” period. Detention of an
alien in the pre-removal period 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:
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,

3

(B) is deportable by reason of having committed any offense
covered in section I 227(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.

§

1226(c)(1).

In Diop v. iCE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011), 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, Section] 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’s] detention become unreasonable, the Government must
justify its continued authority to detain him at a hearing at which it
bears the burden of proof.
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 Id. 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 v.

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
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 “[rjeasonableness, by its very
4

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 [certaini thresholds.”
Chavez—Alvarez v. Warden York Cnry. 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, too, has at least the potential to

influence the determination of 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.”).
This Court need not engage in a Diop/Chavez—Alvarez analysis at this time with respect
to Mr. Redway’s immigration detention. As respondent notes, the BIA dismissed Mr. Redway’s
appeal of the IJ’ removal order on August 25, 2016. Therefore, Mr. Redway is no longer in pre
5
order removal immigration detention, but is now in post-order removal immigration detention.
See 8 C.F.R.

§

1241.1(a) (an order of removal becomes final when the BIA dismisses the

appeal). Therefore, the analysis under Diop/Chavez—Alvarez is no longer applicable to Mr.
Redway’s case.
C. Post-removal Immigration Detention
That does not end the matter, however. Post-removal immigration detention, like pre
removal immigration detention, can become excessive at some point. Title 8 of the United States

5

Code Section 1231 (a)( 1 )(A) states that, “except as otherwise provided in this section, when an
alien is ordered removed, the Attorney General shall remove the alien from the United States
within a period of 90 days (in this section referred to as the “removal period”).” Id

§

123 1(a)(1)(A). The removal period begins on the latest of the following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders
a stay of the removal of the alien, the date of the court’s final order.
(iii) If the alien is detained or confined (except under an
immigration process), the date the alien is released from detention
or confinement.
Id.

§

123 1(a)(l)(B). Federal regulations provide that:
An order of removal made by the immigration judge at the
conclusion of the proceedings under section 240 of the Act shall
become final:
(a) Upon dismissal of an appeal by the Board of Immigration
Appeals;
(b) Upon waiver of appeal by the respondent;
(c) Upon expiration of the time allotted for an appeal if the
respondent does not file an appeal within that time;
(d) If certified to the Board or Attorney General, upon the date of
the subsequent decision ordering removal; or
(e) If an immigration judge issues an alternate order of removal in
connection with a grant of voluntary departure, upon overstay of
the voluntary departure period, or upon the failure to post a
required voluntary department bond within 5 business days. If the
respondent has filed a timely appeal with the Board, the order shall
become final upon an order of removal by the Board or the
Attorney General, or upon overstay of the voluntary departure
period granted or reinstated by the Board or the Attorney General.

8 C.F.R.

§

1241.1. Section 123 1(a)(2) requires that the alien be detained during the ninety day

post-removal order period. See 8 U.S.C.
ninety-day period, then

§

§

123 1(a)(2). If the alien is not removed during that

1231 (a)(6) authorizes either continued detention or release on bond:

An alien ordered removed who is inadmissible under section 1982
of this title, under section l227(a)(l)(C), 1227(a)(2), or 1227(a)(4)
of this title or who has been determined by the Attorney General to
be a risk to the community or unlikely to comply with the order of
6

removal, may be detained beyond the removal period and, if
released, shall be subject to the terms of supervision in paragraph
(3).
8 U.S.C.

§

123 1(a)(6).

In Zadvydas v. Davis, 533 U.S. 678 (2001), the United States Supreme Court held that

§

1231 (a)(6) “limits an alien’s post-removal-period detention to a period reasonably necessary to
bring about that alien’s removal from the United States. It does not permit indefinite detention.”
533 U.S. at 689. To state a habeas claim under

§ 2241, the petitioner must provide facts showing

good reason to believe that there is no reasonable likelihood of his actual removal in the
reasonably foreseeable future. See Zadvydas, 533 U.S. at 701. “Zadvydas does not delineate the
boundaries of evidentiary sufficiency, but it suggests that an inversely proportional relationship
is at play: the longer an alien is detained, the less he must put forward to obtain relief’ Alexander
v. Attorney Gen. United States, 495 F. App’x 274, 276-77 (3d Cir. 2012) (citing Zadvydas, 533
U.S. at 701). As a rule of thumb, the Supreme Court stated that six months is a presumptively
reasonable period of post-removal detention under

§

123 1(a)(6). See Zadvydas, 533 U.S. at 701.

Mr. Redway’s post-removal immigration detention began on August 25, 2016. Thus, Mr.
Redway is still within the presumptively reasonable six-month period of post-removal
immigration detention set forth in Zadvydas. To the extent that Mr. Redway could challenge his
post-removal-order immigration detention, such a challenge is premature and will be denied
without prejudice to a later application. Accord Grossett v. Muller, No. 13—0364, 2013 WL
6582944, at *3 (D.N.J. Dec. 13, 2013) (noting Zadvydas claim is premature if filed prior to
expiration of six-month presumptively reasonable removal period); Abdou v. Elwooc No. 12—
7720, 2013 WL 1405774, at *4 (D.N.J. Apr. 4, 2013) (same). Should the United States fail to

7

________________________

execute the order of removal within a reasonable time, a claim by Mr. Redway challenging his
post-removal immigration detention may be reasserted.
IV.

CONCLUSION

For the foregoing reasons, the habeas petition will be denied without prejudice. An
appropriate order will be entered.

DATED: February 17, 2017
K yIN MCNULTY
United States District Judge

8