NIMNEH v. GREEN

Filing 5

MEMORANDUM AND ORDER that the petition for writ of habeas corpus is granted to the extent that an Immigration Judge shall provide petitioner with an individualized bond hearing, pursuant to 8 U.S.C. § 1226, within 14 days of the date of this Order, and the respondent shall report the outcome of the bond hearing to this Court within 7 days after it occurs. Signed by Judge Kevin McNulty on 5/19/17. (sr, )(N/M)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

FRANCIS NIMNEIT,
Petitioner,

Civ. No. 17-2471 (KM)

V.

CHARLES GREEN,

MEMORANDUM AND ORDER

Respondent.

The petitioner, Francis Nirnneh, is an immigration detainee currently lodged at the Essex
County Correctional Facility in Newark, New Jersey. A native and citizen of Liberia, he entered
the United States in 1984. Mr. Nimneh was previously convicted of drug offenses in New Jersey
after his arrival to the United States. He was placed and has remained in immigration detention
from May 17, 2016, to the present.
In April, 2017, Mr. Nimneh filed apro se petition for writ of habeas corpus pursuant to
28 U.S.C.

§ 2241

in this Court. He asserts that he is entitled to a bond hearing. On May 17, 2017,

the government filed its response to the habeas petition. (See Dkt. No. 4) In its response, the
government states that it does not object to this Court’s ordering that a bond hearing take place
before an Immigration Judge.
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,
(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 1 182(a)(3)(B) of this title or
deportahie 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.
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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 “[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 {certainj 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, 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.”).
In the pre-removal context under Diop and Chavez-Alvarez, the proper relief is to order a

bond hearing before the Immigration Judge, not to order the petitioner released from immigration
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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 221).

—

In this case, Mr. Nimneh has been detained pursuant to

§ 1226(c) for one year. The

government concedes that at this point that it would be appropriate for this Court to order that a
bond hearing be held by an Immigration Judge in accord with Chavez-Alvarez. In light of the
length of time Mr. Nimneh has been in immigration detention, the lack of any evidence of bad
faith on Mr. Nimneh’s part, and the government’s consent, this Court will grant the habeas
petition and direct that an Immigration Judge conduct a bond hearing.
Mr. Nimneh seeks attorney’s fees in his habeas petition. Because he is proceeding pro Se,
an award of attorney’s fees is not warranted. See Beebe v. Schultz, No. 14-1385, 2014 WL
2196767, at *2 n.8 (D.N.J. May 27, 2014) (“To the extent Plaintiff seeks attorney’s fee in
connection with this matter, Plaintiffs application is denied because Plaintiff is proceeding pro
se”); Ware v. Transport Drivers, Inc., 30 F. Supp. 3d 273, 274 n.5 (D. Del. 2014) (“Plaintiff
currently proceeds pro se, and, therefore, attorneys fees are not recoverable.”).
Accordingly, IT IS this 19th day of May, 2017,
ORDERED that the petition for writ of habeas corpus is granted to the extent that
an Immigration Judge shall provide petitioner with an individualized bond hearing, pursuant to 8
U.S.C.

§ 1226, within fourteen (14) days of the date of this Order; and it is further
ORDERED that the respondent shall report the outcome of the bond hearing to this Court

within seven (7) days after it occurs; and it is further

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ORDERED that the Clerk shall serve this Memorandum and Order on petitioner by
regular U.S. mail; and it is further
ORDERED that the Clerk shall mark this case as closed.

United States District Judge

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