WATSON v. GREEN

Filing 9

OPINION. Signed by Judge Kevin McNulty on 4/26/2017. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DENTON WATSON,
Civ. No. 170595 (KM)

Petitioner,
V.

OPINION

CHARLES GREEN,
Respondent.

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

INTRODUCTION

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

§ 2241.’

Mr. Watson challenges his

current immigration detention in this habeas petition. For the following reasons, the habeas
petition will be granted and a bond hearing will be ordered to take place before an Immigration
Judge (“IJ”) within fourteen days.
II.

BACKGROUND

Mr. Watson is a native and citizen of Jamaica. He entered the United States in 1983. Mr.
Watson was convicted of several drug offenses, the first of which occurred in 1989.
On July 8, 2016, Mr. Watson was placed into immigration detention. On August 3, 2016,
Mr. Watson requested a continuance of his removal proceedings before an IJ so that he could
obtain counsel. At another hearing before an IJ on September 7, 2016, Mr. Watson, who now had
counsel to represent him, requested another continuance. On October 26, 2016, the master
Mr. Watson filed his habeas petition pro se. However, counsel has now entered an appearance
and also filed a reply brief on his behalf.

calendar hearing was adjourned by the IJ to the individual calendar for a merits hearing. On
January 10, 2017, Mr. Watson appeared for his individual merits hearing. On February 27, 2017,
an IJ ordered Mr. Watson removed from the United States.
Mr. Watson appealed the IJ’s removal order to the Board of Immigration Appeals
(“BIA”). Mr. Watson indicates in his reply brief that the matter remains pending before the BIA.
(See Dkt. No. 8 at p.6)
In January, 2017, Mr. Watson filed his habeas petition. Respondent filed a response in
opposition to the habeas petition. Thereafter, Mr. Watson filed a reply brief in support of his
habeas petition.
IlL

DISCUSSION

Mr. Watson has appealed the IJ’s order to the BIA, and for so long as that appeal remains
pending, his order of removal is not final. See 8 C.F.R. 1241.1(a) (order of removal by IJ
becomes final upon dismissal of appeal by the BIA). 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;
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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,
(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 1227(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 1227(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
3

§

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

Attorney Gen., 678 F.3d 265, 270—7 1 (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 “[r]easonableness, 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 detainee’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 Ed. 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.”).
A. Reasonableness of Immigration Detention
Mr. Watson has been in immigration detention for over nine months. As indicated above,
in Chavez-Alvarez, the Third Circuit noted that sometime after six months, and almost certainly
after a year, the burden to the petitioner’s liberties would outweigh any justification to detain the
petitioner without a bond hearing. Respondent nevertheless argues that a hearing should be
denied for two reasons. First, “all the delay in Mr. Watson’s proceedings to date is attributable to

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his requests for continuances and his non-readiness to complete his hearing on his claim for
No.
protection from removal to his home country on the scheduled date of July 26, 2016.” (Dkt.
4 at p.17) (emphasis in original). Second, he has not raised a bona fide challenge to his removal.
To say that Mr. Watson is responsible for “all” of the delay is an unacceptable
exaggeration of the kind that trained counsel should avoid. To be sure, Mr. Watson did obtain
to
continuances during the proceedings before the IJ. Other delays, however, are not attributable
him. For example, respondent states that the Ii listed the matter for a merits hearing on October
a
26, 2016, but the hearing did not take place until January 10, 2017. It was not until a month and
half after that merits hearing, on February 27, 2017, that Mr. Watson received a decision. Mr.
Watson is not rresponsible for this period of time. Additionally, Mr. Watson’s appeal is

now

pending before the BIA. A date when the BIA will rule on this appeal is unknown.
Thus, the claim of government counsel that Mr. Watson is responsible for “all” of the
delay in this case is unfounded. Aside from putting the Court to the unacceptable burden of
sorting out this exaggerated claim, counsel has weakened the government’s position, which
would be an arguable one, based on the actual facts.
That Mr. Watson is partly responsible for the delay in his immigration proceedings is not
dispositive. In Chavez-Alvarez, the Third Circuit explained that “[t]he primary point of reference
for justifying the alien’s confinement must be 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 that he or she poses.” 783 F.3d at 475. Thus, “detention can become
unreasonable, and a petitioner can be entitled to a bond hearing, even where the Government
itself acted reasonably and is not reasonable for the delays in the conclusion of an alien’s
*2 (D.N.J.
immigration proceedings.” Rodriguez v. Green, No. 16-443 1, 2016 WL 7175597, at

5

Dec. 7, 2016). Of course, that is not license for detainees to proceed in bad faith as “aliens who
are merely gaming the system to delay their removal should not be rewarded with a bond hearing
that they would not otherwise get under the statute.” Chavez-Alvarez, 783 F.3d at 476 (footnote
omitted). A detainee’s good or bad faith, however, is not a matter of counting days or tallying
rulings, but requires an assessment of circumstances. The detainee’s good or bad faith requires
an assessment of the circumstances:
The issue of good faith is necessarily decided on the individual
circumstances, but the analysis is more complex than the method
posed by the Government: counting wins and losses. The most
important consideration for us is whether an alien challenges
aspects of the Government’s case that present real issues, for
example: a genuine factual dispute; poor legal reasoning; reliance
on a contested legal theory; or the presence of a new legal issue.
Where questions are legitimately raised. we 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 [as] reasonable.”
.

.

Chavez-Alvarez, 783 F.3d at 476 (citation omitted).
Mr. Watson has now been in immigration detention for over nine months. Nothing about
the circumstances under which he sought and obtained continuances of his immigration
proceedings suggests bad faith. For the most part, he merely sought to, and did, obtain counsel.
That, without more, does not disentitle him to a bond hearing.
Respondent also contests the bona fides of Mr. Watson’s claims of non-removability. But
that is what an appeal to the BIA is for. It is true that an IJ has now denied Mr. Watson’s claims
for relief. That, without more, does not establish that he acted in bad faith. See, e.g., Peinado v.
Green, No. 16-5325, 2016 WL 7104890, at *2 (D.N.J. Dec. 6, 2016) (citing Chavez-Alvarez and
noting that “The fact that the IJ sustained the removal order and denied relief does not establish
that Petitioner’s requests for relief from removal are nothing more than a bad faith attempt to
delay proceedings”)
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In light of the length of time Mr. Watson has been in immigration detention and a lack of
evidence of bad faith, I find that that Mr. Watson is entitled to relief.
B. Type of Relief
Mr. Watson requests immediate release from immigration detention. However, in the pre
removal context under Diop and Chavez-Alvarez, the proper relief is not to release the petitioner,
but to order a bond hearing. 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 rom the
narrowly-tailored mandate of 28 U.S.C.
removal order detainees

—

§ 2241, which

—

with respect to the claims raised by pre

allows relief limited to a directive of a bond hearing.”) (citing Diop,

656 F.3d at 221).
The Respondent argues that what is required is not a bond hearing before an IJ, but a new
2
initial custody determination by a deportation officer. The premise of this argument seems to be
that, once a

§

converted to a

1226(c) pre-removal detention is found to be unreasonable, it should be judicially

§

1226(a) detention. Courts within this Circuit, disagreeing, have found that the

proper relief under Diop/Chavez-Alvarez is to order a bond hearing before an IJ in the first
instance. See, e.g., Rodriguez, 2016 WL 7175597, at * 3 (granting habeas relief and directing IJ to
*34
provide petitioner with a bond hearing); Javier v. Lowe, No. 16-056 1, 2016 WL 1569941, at
(M.D. Pa. Apr. 18, 2016) (collecting cases and holding that initial bail determinations in the

In support of this argument, respondent cites Gordon v. Johnson, 300 F.R.D. 31 (D.
Mass. 2014). Respondent’s citation does not note that Gordon was vacated on November 21,
2016, some four months prior to the filing of its brief in this case. See Gordon v. Lynch, 842 F.3d
66 (1St Cir. 2016). This is unacceptable. Even the vacated Gordon district court decision,
however, would not apply. It rests on the doctrine, rejected by the Third Circuit, that immigration
detention is unreasonable unless it commences within forty-eight hours of release from the
relevant predicate custody. See Gordon, 300 F.R.D. at 35. Third Circuit law does not require that
the government immediately place the petitioner into immigration detention when he is released
from criminal custody. See Sylvain v. Attorney General, 714 F.3d 150 (3d Cir. 2013).

2

7

Chavez-Alvarez context should be made by the Ii in the first instance), report and
recommendation adopted by 2016 WL 1569942 (M.D. Pa. Apr. 19, 2016). I will order such relief
here.
IV.

CONCLUSION

For the foregoing reasons, I will grant Mr. Watson’s petition for writ of habeas corpus to
the extent that I will direct an IJ to provide him with a bond hearing within fourteen days. The
respondent shall report the result of the bond hearing to this Court within seven days thereafter.
I am cognizant of the enormous caseload faced by conscientious government attorneys. I
must nevertheless observe that it is not acceptable to exaggerate the facts or to cite vacated
authority without identifying it as such.
An appropriate order will be entered.
Dated: April 26, 2017
MCNULTY
United States District Judge

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