JAKOWSKI v. GREEN

Filing 9

OPINION. Signed by Judge Jose L. Linares on 5/8/17. (DD, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No. 16-9016 (JLL)

KAROL MARCIN JAKOWSM,
Petitioner,

OPINION

v.
CHARLES GREEN,
Respondent.

LINARES, District Judge:

Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Karol
Marcin Jakowski, filed pursuant to 28 U.S.C.

§ 2241. (ECF No. I). Following an order to answer

(ECF No. 3), the Government filed a response to the Petition (ECf No. 5), to which Petitioner has
replied. (ECF No. 8). For the following reasons, this Court will grant the petition and will grant
Petitioner a bond hearing before an immigration judge.

I. BACKGROUND

Petitioner, Karol Marcin Jakowski, is a native and citizen of Poland who entered this
country in June 2005 and ultimately became a lawful penrianent resident of the United States in
June 2006. (Document 1 attached to ECF No. 5 at 4). In October 2013, however, Petitioner was
convicted of manufacturing, distributing, dispensing, or possession with intent to distribute
cocaine, for which he received a four year prison sentence. (Id.). Based on this conviction,
Petitioner was taken into immigration custody and placed in removal proceedings on May 4, 2016.
(Id. at 2-3). Since that time, Petitioner has remained in immigration detention without a bond

hearing pursuant to 8 U.S.C.

§ 1226(c). (Id. at 14).
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Petitioner first appeared before the immigration courts on or about May 18, 2016, but
requested a continuance to obtain counsel. (Id. at 11). Petitioner was scheduled to appear again
on June 28, but that hearing was continued at the request of Petitioner’s immigration counsel. (Id.).
The next hearing was then scheduled for July 13, but that date was also continued to provide
Petitioner with time to file an application for relief from removal, although the immigration judge
apparently “sustained” the charge of removability on July 13, 2016. (Id.). Although Petitioner
was set to appear once again on August 10, 2016, that date was also continued at Petitioner’s
counsel’s request. (Id.). At his next appearance on September 14, 2016, Petitioner filed an
application for relief from removal and protection from removal. (Id. at 12). The immigration
judge on that date once again “sustained” the charge of removability, and Petitioner was scheduled
for a merits hearing on November 22, 2016. (Id.). At the November 22 hearing, Petitioner’s
immigration counsel requested and was permitted to withdraw his representation of Petitioner, and
the merits hearing was rescheduled for february 9, 2017. (Id.). Afier the February hearing was
rescheduled due to weather issues, Petitioner’s merits hearing was set for March 21, 2017. (Id.).
It is not clear what, if anything, occurred during the March 21 hearing as neither Petitioner nor the
Government have provided that information, but it appears from the record that Petitioner remains
detained and has not yet received a final order of removal.

II. DISCUSSION
A. Legal Standard

Under 2$ U.S.C.

§ 2241(c), habeas relief maybe 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”

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and the custody is allegedly “in violation of the Constitution or laws or treaties of the United
States.” 2$ U.S.C.

§ 2241(c)(3); Maleng v. Cook, 490 U.S. 48$, 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. Kemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Coitrt, 410 U.S.
484, 494-95. 500 (1973); see also Zathydas v. Davis, 533 U.S. 678, 699 (2001).

B. Analysis

Because the record indicates that Petitioner is being held based on his past criminal
convictions 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, 23 1-35 (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 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 this reasonableness inquiry is fact specific, Court of Appeals declined to provide
a specific length of time beyond which a petitioner’s detention would presumptively become
unreasonable in Diop. See 656 F.3d at 234; see also Carter v. Aviles, No. 13-3607, 2014 WL

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348257, at *3 (D.N.J. 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) in the cases

following Diop, the Court of Appeals did provide some guidance on that question in ChavezAlvarez. In Chavez-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 timefrarne
[upheld by the Supreme Court inDemore [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 tthe 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 47$.
In this case, the Government contends that, while Petitioner has at this point been held for
approximately a year without a bond hearing, the facts of this matter are clearly distinguishable
from those in Chavez-Alvarez and Petitioner is therefore not entitled to relief. In making that
argument, the Government specifically argues that Petitioner has been responsible for the vast
majority of the delays in his immigration proceedings, and that Petitioner has only one potentially
meritorious avenue for relief

—

a claim under the Convention Against Torture

—

which requires

clearing a high evidentiary threshold. Petitioner counters this argument by suggesting that the
need for the many continuances arises out of the need to muster evidence to support his Convention
claim, arguing that the high bar the Government argues that he faces supports the conclusion that
more time was needed to prepare a bona fide claim under the Convention.
As this Court has explained:
The question before this Court. 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 must be
.

.

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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 v 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 *2.3 (D.N.J. Dec. 6, 2016).

In this matter, Petitioner has been detained for approximately a year and is apparently not
yet subject to a final order of removal. While this Court acknowledges that Petitioner has been
responsible for most of the delay in his immigration proceedings and faces a high hurdle in seeking
relief from removal, the record also suggests that Petitioner’s immigration proceedings have
progressed during this period

—

Petitioner has apparently filed several applications for relief from

removal, including a claim under the Convention Against Torture, and has litigated at the very
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least his removability. Based on the record currently before the Court, it is not clear that Petitioner
has acted in bad faith or has delayed his proceedings out of some dilatory motive, and it instead
appears that Petitioner has instead sought to exercise his legal right to challenge the Government’s
case against him. Because this Court does not find that Petitioner acted in bad faith or merely to
delay proceedings, this Court finds that Petitioner’s case is not meaningfully distinguishable from
that presented in Chavez-Alvarez. Petitioner’s habeas petition will therefore be granted and
Petitioner shall be granted a bond hearing before an immigration judge.

III.. CONCLUSION

For the reasons expressed above, Petitioner’s habeas petition (ECf No. 1) is GRANTED
and Petitioner shall be accorded a bond hearing before an immigration judge. An appropriate order
follows.

L. Linares,
States District Judge

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