NAMOYA v. GREEN

Filing 5

MEMORANDUM OPINION. Signed by Judge Kevin McNulty on 4/2/18. (DD, ) N/M

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HUSSEIN NAMOYA,
Petitioner,

Civ. No. 17-5878 (KM)

v.
CHARLES GREEN,

MEMORANDUM OPINION

Respondent.

KEVIN MCNULTY, U.S.D.J.
Petitioner, Hussein Namoya, is an immigration detainee who was detained at the Essex
County Correctional Facility, in Newark, New Jersey, when he commenced this proceeding. He
is proceeding prose with a petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2241.

For

the following reasons, and upon consent of respondent, the habeas petition will be granted to the
extent that Mr. Namoya, if still in custody, will be granted a bond hearing.
Mr. Namoya is a native and citizen of Kenya. He entered the United States in February
2004, and resided here since that time, becoming a lawful permanent resident in 2010. Mr.
Namoya was convicted in New Jersey of a controlled-dangerous-substance offense in 2015. On
September 13, 2016, the Department of Homeland Security, Immigrations and Customs
Enforcement, (“ICE”) issued him a notice to appear and commenced removal proceedings
against him. ICE took Mr. Namoya into immigration custody on September 15, 2016, finding
that he was subject to mandatory’ detention under 8 U.S.C.

§

1226(e).

Mr. Namoya fiLed this habeas petition on August 7,2017. He seeks an order granting his
immediate release from immigration detention or, alternatively, directing that a bond hearing

take place before the Immigration Court. On August 28, 2017, I ordered respondent to file an
answer responding to Mr. Namoya’s petition. (ECF No. 2.) I also ordered respondent to notif’
the Court within seven days of Mr. Namoya’s release from custody, “by parole or otherwise.”
(Id.) Counsel for respondent subsequently filed a response stating that “the United States does
not object to the Court entering an order remanding this matter to the Immigration Court for a
bond hearing.” (ECF No. 4.)
Under 8 U.S.C.

§ 1226(c)(1). certain criminal aliens are subject to mandatory pre

removal detention. The United States Court of Appeals for the Third Circuit, in Diop v.
ICW/Homeland Security, 656 F. 3d 221 (3d Cir. 2011), held that

§ 1226(c) “authorizes only

mandatory detention that is reasonable in length.” Id. at 234—35. The Third Circuit subsequently
noted that pre-removal detention under

§ 1226(c) without an individualized showing of necessity

would become constitutionally problematic at some point after six months of detention, and
certainly within one year. Chavez-Alvarez v. Warden York Cry Prison, 783 F.3d 469, 478 (3d
Cir. 2015).
As respondent does not oppose giving Mr. Namoya a bond hearing, I will remand this
proceeding to the Immigration Court for the purposes of holding such a hearing. I additionally
note that the ICE Online Detainee Locator System appears to indicate that Mr. Namoya is no
longer be in immigration custody. If it is indeed the case that Mr. Namoya has been released or
removed, a bond hearing would of course be moot and unnecessary.

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For the foregoing reasons, the habeas petition will be granted insofar as, if Mr. Namoya
remains in immigration custody, an Immigration Judge shall provide him with an individualized
bond hearing, pursuant to 8 U.S.C.

§

1226, within thirty days of the date of this memorandum

opinion. If Mr. Namoya is no longer in custody, then the proceeding may be considered
dismissed as moot. See Lindaasruty v Any Geji. of US., 186 F. App’x 294, 298 (3d Cir. 2006).
An appropriate order will be entered.

DATED:

April

2,2018

KEVIN MCNULTY
United States District Judge

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