ALGHAZALI v. TSOUKARIS et al

Filing 15

OPINION. Signed by Chief Judge Jose L. Linares on 7/27/2017. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No. 16-9055 (JLL)

ARMED ESMAIL MOHAMMED
ALGHAZALI,
Petitioner,

OPINION
V.

JOHN TSOUKARIS, et al.,
Respondent.

LINARES, Chief District Judge:
Presently before the Court is the amended petition for a writ of habeas corpus of Petitioner,
Ahmed Esmail Mohammed Aighazali, filed pursuant to 28 U.S.C.

§ 2241. (ECF No. 3).

Following an order to answer (ECF No. 5), the Government filed a response to the Petition (ECF
No. 12), to which Petitioner has replied (ECF Nos. 14). for the following reasons, this Court will
deny the petition without prejudice.
I. BACKGROUND

Petitioner, Ahmed Esmail Mohammed Alghazali, a native and citizen of Yemen who
became a lawful permanent resident of the United States in May 199$. (ECf No. 12-1 at 4). In
February 2009, however, he was convicted in the United States District Court for the Eastern
District of Virginia of conspiracy to transport contraband cigarettes. (Id.). Petitioner received an
eighteen month sentence. (Id. at 5). following his release from prison, immigration officials took
Petitioner into custody and placed him into removal proceedings in April 2010. (Id.). Petitioner

was ordered removed in August 2010 and was deported to his home country of Yemen. (Id.).

1

Six years later, on April 30, 2016, Petitioner attempted to re-enter the United States in New
York, but was not admitted as Petitioner did not possess a valid visa or other travel document. (Id.
at 17). Petitioner was thus detained and placed into removal proceedings. (Id.). Based on a
credible fear interview conducted in May 2016, Petitioner was placed in asylum proceedings
before an immigration judge, which apparently remain pending at this time. (Id.). Petitioner also
sought to reopen or have his prior removal order reconsidered, but the immigration court which
entered that order denied his motion to reopen and for reconsideration in December 2016. (Id. at
4-12).

Since his arrival in New York in April 2016, Petitioner has remained detained as an

applicant for admission pursuant to $ U.S.C.

§ 1225(b)(2)(A).

II. DISCUSSION
A. Legal Standard
Under 2$ U.S.C.

§ 224 1(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. Kemna, 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).

2

B. Analysis
1. Petitioner’s requests for review of the decisions of the immigration courts

In his habeas petition, Petitioner presents two classes of claims. First, he presents a classic
habeas claim in which he challenges the constitutionality of his ongoing immigration detention
pending a decision in his removal proceedings, which this Court addresses in detail below. In his
second class of claims, however, Petitioner addresses not his detention, but rather the decisions of
the immigration courts and requests that this Court review the decisions of the various immigration
courts finding him subject to deportation prior to his removal from this country in 2010 and finding
that he failed to present a valid basis for reconsideration or reopening of his prior removal order
during his current immigration proceedings. This Court will address this latter class of claims
first.
In Petitioner’s second class of claims, Petitioner essentially asks that this Court provide
collateral, quasi-appellate review of the decisions of the immigration courts both in issuing his
original removal order and in denying his requests to reopen or reconsider that order, all of which
he asserts were made in error. Pursuant to 8 U.S.C.
filed with an appropriate court of appeals

.

.

.

§ 1252(a)(5), however, “a petition for review

shall be the sole and exclusive means for judicial

review of an order of removal.” This Court thus lacks jurisdiction review challenges to the
immigration courts’ entry of, or refusal to reconsider or reopen, an order of removal such as the
one Petitioner received. See Chttva v. Att’y Gen., 432 F. App’x 176, 177 (3d Cir. 2011). All of
petitioner’s claims challenging the decisions of the immigration courts to enter or refuse to review
or reopen Petitioner’s removal order must therefore be dismissed for lack ofjurisdiction. Id.

3

2. Petitioner’s Challenge to his Detention
In his remaining claims, Petitioner asserts that his ongoing detention is unconstitutional as

it has become prolonged and he has not received a bond hearing, to which he asserts he is entitled

under Diop v. IcE/Homeland Sec., 656 F.3d 221, 23 1-35 (3d Cir. 201 1), and chavez-Alvarez v.
Warden York County Prison, 783 F.3d 469 (3d Cir. 2015). The Government, however, contends

that those cases are not applicable to this matter as Petitioner is being held as an inadmissible
arriving alien, and is thus detained pursuant to 8 U.S.C.

§ 1225(b)(2)(A) rather than § 1226(a) or

(c), which apply to aliens who are to be removed who have previously effected an entry into the

United States. As Petitioner’s entitlement to relief depends on the statutory basis for his detention,
this Court must first determine that basis.
Petitioner contends that $ U.S.C.

§ 1226 applies to all aliens subject to removal

proceedings, regardless of whether they have entered the United States prior to being apprehended
by immigration officials. Petitioner is mistaken. “While

§ 1226(c) controls the detention of aliens

who have effected entry into this country [who are subject to removal proceedings], 8 U.S.C.

§

1225(b)(2)(A) provides that an arriving alien is considered ‘an applicant for admission’ and that

such applicants for admission must be detained for removal proceedings ‘if the examining
immigration officer determines that an alien seeking admission is not clearly and beyond a doubt
entitled to be admitted.” Gregorio-Chacon v. Lynch, No. 16-2768, 2016 WL 6208264, at *2
(D.N.J. Oct. 24, 2016). While section 1225 does provide that the Government may under certain
limited circumstances choose to parole such an alien such that he is released into the United States,
even if an applicant for admission is released his legal status does not change and he is considered
to remain held at the border and is thus not considered to have entered the United States. Id.; see
also Kay

v. Reno,

94 F. Supp. 2d 546, 554 (M.D. Pa. 2000). Thus, from the statutes it is clear that

4

§ 1226 does not apply to Petitioner that statute applies oniy to aliens who have entered the United
—

States awaiting a decision on whether they shall be removed, while

§ 1225 instead governs those

who are considered never to have entered the United States because they were detained as
applicants for admission.

As Petitioner was detained as an applicant for admission upon his

attempt to re-enter the United States after his previous removal, he is detained under
not

§ 1225, and

§ 1226, and his entitlement to relief is limited by his status as an applicant for admission.
As one court in this district recently explained,
Pursuant to the statutory and regulatory scheme § 1225(b)(2)(A)
essentially requires mandatory detention for aliens [deemed to be
applicants for admission not clearly entitled to enter the United
States]. 8 C.F.R. § 235.5(b)(2)(iii); see also Tineo [v. Ashcroft, 350
F.3d 382, 387 (3d Cir. 2003)]. Such aliens are not entitled to a bond
hearing [before an immigration judge], see, e.g., $ C.F.R. §
1003.19(h)(2)(i)(B). but the statute does permit the Attorney
General, through the Department of Homeland Security, to parole
such aliens into the United States if “urgent humanitarian reasons or
See 8 U.S.C. §
significant public benefit” so warrant.
11 82(d)(5)(A). This is the only parole relief contemplated by the
statute and regulations. In addition, an immigration judge does not
have authority to review the Attorney GeneraPs parole
detenuination. 8 C.F.R. § 1003.1 9(h)(2)(i)(B).
,

This statutory limitation means that an arriving alien, like
Petitioner, does not receive a hearing to determine if the
justifications of flight risk and danger to the community apply to his
1l82(d)(5)(A); 8 C.F.R. §
detention.
8 U.S.C. §
1003.1 9(h)(2)(i)(B). As result, unless required by the Constitution,
Petitioner is not entitled to release or bond hearing pursuant to the
statutory scheme.
Mancia-Salazar v. Green, No. 17-147, 2017 WL 2985392, at *2 (D.N.J. July 13, 2017).
Because Petitioner is not entitled to relief from detention under the statutory and regulatory
scheme, Petitioner would only be able to receive the bond hearing he seeks in this matter if the
Due Process Clause so required. Petitioner is not the first applicant for admission to assert before
this Court that he is entitled to a bond hearing under
5

§ 1225. In Damns v. Tsotckaris, No. 16-933,

2016 WL 4203816, at *2.4 (D.N.J. Aug. 8, 2016), this Court determined that while applicants for
admission are treated as if they have never entered the United States and are not entitled to the
same level of protections as aliens found within the United States, they are not wholly devoid of
Due Process rights. Id. This Court explained as follows:
To the extent that Petitioner asserts a constitutional claim for relief,
such a claim would be affected by his status as an applicant for
admission rather than an alien who has previously entered the
country. See, e.g., Maldonado v. Macias, 150 F. Supp. 3d 788, 798800 (W.D. Tex. 2015). Petitioner’s status as an applicant for
admission affects his right to Due Process because applicants for
admission are subject to the “entry fiction” which provides that, for
legal and constitutional purposes, an alien stopped at the border is
considered to remain at the border even if he is paroled into the
country, and is treated as such for the purpose of detennining his
rights to relief. Id.; see also see also Kay[, 94 F. Supp. 2d at 554]
(describing the “entry fiction”). The distinction is not one without
a difference, as the Supreme Court in Zadvydas observed that it “is
well established that certain constitutional protections available to
persons inside the United States are unavailable to aliens outside of
our geographic borders,” and that “once an alien [for legal purposes]
enters the country, the legal circumstance changes, for the Due
Process Clause applies to all ‘persons’ within the United States,
including aliens, whether their presence here is lawful, unlawful,
temporary or permanent.” 533 U.S. at 693. The Court has likewise
suggested that even for those aliens found within the United States,
“the Due Process Clause does not require [the Government] to
employ the least burdensome means to accomplish [the removal of
those aliens].” Demore v. Kim, 538 U.S. 510, 523 (2003). Indeed,
“the Supreme Court has made clear that inadmissible aliens are
entitled to less due process than are resident aliens.” Maldonado,
150 F. Supp. 3d at 799 (citing Demore, 538 U.S. at 547 (O’Connor,
J., concurring)). Indeed, as Zadvydas explained, an alien’s treatment
“as if stopped at the border” has historically been held sufficient to
justify lengthy and seemingly interminable detention. 533 U.S. at
692-93 (citing Shattghnessy v. United States cx rd. Mezei, 345 U.S.
206, 212 (1953)). By all appearances, then, Petitioner, as an alien
deemed an applicant for admission who is legally treated as if
stopped at the border is entitled to something less than the full
panoply of rights usually conferred by the Due Process Clause. Cf
Rosales-Garcia v. Holland, 322 F.3d 326, 412 (6th Cir. 2003) (en
banc) (holding that at least the substantive portion of the Due
Process Clause must apply to even those aliens at the border as to
6

hold otherwise would permit the Government to “torture or
summarily execute them” which would amount to an absurd
proposition).
Thus, although Petitioner is likely not entitled to all the
rights Due Process would provide an alien considered within this
country, he has at least some entitlement to proper procedures. The
question that arises, then, is whether mandatory detention ad
infinitum comports with that entitlement. On this issue, however,
neither the Supreme Court nor the Third Circuit has provided clear
guidance. While the Third Circuit has not provided this Court with
guidance as to whether indefinite detention under § 1225(b)(2)(A)
comports with the Constitution, the Court has addressed a similar
statutory provision in the form of § 1226(c). Like § 1225(b)(2)(A),
§ 1226(c) expressly provides that the Government shall take into
custody those removable aliens who have been convicted of certain
classes of offenses, and does not provide for a bond hearing once
those aliens have been so detained. In Diop, however, the Third
Circuit held that detention subject to § 1226(c) was subject to a
reasonable time limitation as to interpret the statute to permit
indefinite detention would run the risk of running afoul of the Due
Process Clause. 656 F.3d at 23 1-32. Thus, as a matter of statutory
interpretation and constitutional avoidance, the Third Circuit held
that § 1226(c) authorized mandatory detention for only a reasonable
period of time, after which the Government would be required to
justify the alien’s continued detention at an individualized bond
hearing. Id. at 231-34.
Thus, the Third Circuit held in Diop that the federal courts,
in detennining whether an alien subject to mandatory detention
under § 1226(c) was entitled to a bond hearing, must determine
whether the length of his detention was “reasonable,” which is a
“function of whether it is necessary to fttlfill the purpose of the
statute.” Id. at 234. Such a determination is a fact specific inquiry
“requiring an assessment of all of the circumstances of a given
case.” Id. While the Court in Diop did not provide specific guidance
as to the length of time which would cast doubt on the
reasonableness of a given alien’s detention, see 656 F.3d at 234; see
also Carterv. Aviles, No. 13-3607, 2014 WL 348257, at *3 (D.N.J.
Jan. 30, 2014), the Third Circuit provided further guidance in
chavez-Alvarez. In Chavez-Alvarez, the Third Circuit clarified that,
at least where no evidence of bad faith on the part of the petitioner
has been presented, “beginning sometime after the six-month
tirneframe [upheld by the Supreme Court in Demore, and certainly
by the time [the petitioner] had been detained for one year, the
burdens to [the petitioner’s] liberties outweighed any justification
7

for using presumptions to detain him without bond to further the
goals of the statute.” 783 F.3d at 478.
Given this case law in regards to aliens present within this
country subject to mandatory detention, the question here becomes
whether the lesser amount of Due Process to which unadmitted
aliens subject to the entry fiction are entitled requires that
1225(b)(2)(A) be interpreted to include a similar reasonableness
limitation. Several Courts have held that the distinction between
removable aliens present within this country and those not yet
admitted and legally at the border is insufficient to warrant a
difference in treatment, and that § 1225(b)(2)(A) is subject to a
reasonable time limitation as a result. See, e.g., Maldonado, 150 F.
Supp. 3d at 804-8 12; Bautista v. Sabol, $62 F. Supp. 2d 375, 377
(M.D. Pa. 2012); see also Rodriguez v. Robbins, $04 F.3d 1060,
1081-84 (9th Cir. 2015) (holding that aliens detained under §
1226(a), 1226(c), 1225(b)(2)(A), and 1231(a) are all entitled to a
bond hearing afier six months as all of those statutory provisions are
subject to reasonable time limitations), cert. granted sub nom.,
Jennings v. Rodriguez, [136 S. Ct. 2489 (]2016). Other Courts have
instead held that inadmissible aliens are treated differently from
those subject to removal already present within this country, and
therefore are not entitled to release on bond during the pendency of
F. Supp. 3d
their removal proceedings. See, e.g., Perez v. Aviles,
2016 WL 3017399, at * 3 (S.D.N.Y. 2016); see also See
F.Supp.3d
2016 WL 1553430,
Cardona v. Nalls—Castillo,
at *1 (S.D.N.Y. Apr. 14, 2016); Salirn v. Tryon, No. 13-6659, 2014
WL 1664413, at *2 (W.D.N.Y. Apr. 25, 2014) (LPR was lawfully
detained during removal proceedings under § 1 225(b)(2)(A));
Ferreras v. Ashcroft, 160 F.Stipp.2d 617, 622—27 (S.D.N.Y.2001)
(holding the same for LPR detained for over 15 months);
Viknesrajah v. Koson, No. 09-6442, 2011 WL 147901, at *5_6
(W.D.N.Y. Jan. 1$, 2011) (holding § 1225(b) authorized contintied
detention of alien in custody for over two years during pendency of
removal proceedings); bitt see Arias v. Aviles, No. 15-9249, 2016
WL 390673$, at *3 (S.D.N.Y. July 14, 2016) (disagreeing with
Perez and holding that § 1225(b)(2)(A) is subject to a reasonable
time limitation).
---

---,

---,

---

---,

---,

Having weighed the lesser Due Process rights to which
applicants for admission are entitled with the grave specter of
interminable detention, this Court must conclude that the former
class of cases better encapsulate the state of the law and that an
alien’s detention subject to § 1225(b)(2)(A) is subject to the
limitation that his detention may continue only for a reasonable time
at which point his continued detention would need to be warranted
$

by more than a presumption based on his status as an applicant for
admission alone. In so concluding, however, this Court does not
agree with the Ninth Circuit’s conclusion that the distinction
between an alien detained pending removal who is already in this
country and one who remains legally at the border as an applicant
for admission is without difference. The leveL of Due Process
protections to which the two classes are entitled is not equal, and
any remedy fashioned for applicants for admission would have to
uphold and continue the entry fiction even if those aliens were
released on bond or under an order of supervision. The Court also
notes that there are distinctions between § 1225 and § 1226 which
also must be taken into account in fashioning a remedy
specifically, under § 1226, for removable aliens present in this
country, detention subject to bond is the default rule and mandatory
detention the exception, whereas § 1225 essentially sets nigh
mandatory detention as the default rule with parole for humanitarian
reasons the exception.
—

Id.

While this Court concluded in Darnus that applicants for admission could not be held
intemiinably based solely upon their applicant status and that

§ 1225 detention was subject to a

reasonable time limitation, the “distinction in the level of protections between the [aliens detained
under

§ 1226(c) and § 1 225(b)(2)(A)] is one of magnitude rather than entitlement to relief an
—

alien who is legally considered to remain at the border has

no

right

of entry

into this country and

is entitled to lesser protections than one who has already entered, and as such he may be held for
a greater length of time before his continued detention raises Due Process concerns.” Id.

at

*4•

Based on that conclusion, this Court determined that, given the lesser protections applicable to

§

1225 detainees, detention for just under a year was insufficient to warrant habeas relief, in the
form of a bond hearing or otherwise. Id. Since this Court’s ruling in Damus, several other courts

within this District have reached similar conclusions. See Gregorlo-chacon, 2016 WL 6208264
at *4.5 (detention of six months under

§ 1225 not unreasonable); see also Mctncia-Salazar, 2017

9

WL 2985392 at *4.5 (following Damus but finding detention of 18 months under

§ 1225 had

become unreasonable under the facts at hand).
As neither the Supreme Court nor Third Circuit have spoken on the issue since this Court’s
ruling in Damtts,1 this Court reaffirms its conclusion that

§

1225(b)(2)(A)

detention is subject to a

reasonable time limitation and that detainees held under the statute will be entitled to some relief
should the length of their detention exceed a reasonable time, which in the

§

1225

context occurs

at some point beyond one year of detention. The Court also reaffirms, however, that detention of
an alien pursuant to

§ 1225(b)(2)(A) will not become unreasonable until an alien has been held for

a period of time well beyond the six to twelve month period applicable to

§ 1226(c) detainees

under Chavez-Alvarez given the lesser level of protections to which an applicant for admission is
entitled.
In this matter, Petitioner, who has previously been removed from this country following a
criminal conviction, has been held by immigration officials for approximately fifleen months.
Mindful of the fact that this Court has previously determined that detention under

§

1225

approaching a year has yet to become unreasonable in light of the lesser level of Due Process rights
applicants for admission possess, and given the factual particulars of Petitioner’s case including
his prior removal and criminal history, this Court concludes that Petitioner’s detention has yet to
become unreasonable. Petitioner is therefore not entitled to relief from detention at this time.

In June 2016, the Supreme Court granted certification in Jennings. which was originally set to be heard in the October
2016 court term. In December 2016, the Supreme Court ordered the parties to provide additional briefing specifically
addressing whether Due Process “requires that t 1225(b) detainees] be afforded bond hearings, with the possibility
of release into the United States, if detention lasts six months” and whether the burden of proof in any bond hearing
should be on the Government. See Jennings v. Rodriguez, 137 S. Ct. 471 (2016). The issue at the heart of Petitioner’s
challenge was thus squarely before the Court. The Supreme Court, however, did not decide Jennings before the
conclusion of the October 2016 term, and it is thus likely that Jennings will be reargued during the Court’s October
2017 term.

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III. CONCLUSION

For the reasons stated above, this Court will deny Petitioner’s habeas petition without
prejudice to the filing of another petition should the length of Petitioner’s detention become
unreasonable. An appropriate order follows.

J SEL.LINARE’
ef Judge, United States District Court

1l