LOPEZ-MORALES v. GREEN
Filing
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OPINION. Signed by Judge Esther Salas on 05/11/2018. (sms)
Not For Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Petitioner,
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v.
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CHARLES GREEN,
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Respondent.
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JESUS LOPEZ-MORALES,
Civil Action No. 17-12975 (ES)
OPINION
SALAS, DISTRICT JUDGE
Petitioner Jesus Lopez-Morales (“Petitioner”) is currently being detained by the
Department of Homeland Security, Immigration and Customs Enforcement (“DHS/ICE”) at the
Essex County Correctional Facility in Newark, New Jersey. On December 6, 2017, Petitioner
filed the instant Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, challenging his
detention pending removal. (D.E. No. 1, Petition (“Pet”)). For the reasons stated below, the
Court will deny the Petition.
I. BACKGROUND
Petitioner, a native and citizen of Mexico, entered the United States on at an unknown place
and date. (D.E. No. 4, Respondent’s Answer (“Answer”) 2). On May 5, 2017, DHS issued
Petitioner a Notice to Appear. (Id., Ex. A). At that time, DHS determined that he was subject to
discretionary detention pursuant to 8 U.S.C. § 1226(a). (Id., Ex. B). On May 25, 2017, Petitioner
appeared before an immigration judge for a bond hearing, which the judge denied because
Petitioner is a danger to the community. (Id., Ex. C). Petitioner appealed that decision to the
Board of Immigration Appeals (“BIA”), and on November 28, 2017, the BIA dismissed his appeal,
agreeing that Petitioner was a danger to the community. (Id., Ex. D).
On December 6, 2017, Petitioner submitted the instant habeas Petition, arguing that his
prolonged mandatory detention violates his due process rights. (D.E. No. 1). Respondent filed
opposition, arguing that Petitioner is detained under the discretionary detention statute, 8 U.S.C. §
1226(a), and has received a bond hearing. (D.E. No. 4). Petitioner filed a reply, acknowledging
Respondent’s arguments, but then focusing only on mandatory detention under § 1226(c). (D.E.
No. 5).
II. DISCUSSION
A. Legal Standard
Under 28 U.S.C. § 2241(c), habeas relief “shall not extend to a prisoner unless . . . [h]e 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 subject matter jurisdiction under § 2241(c)(3) if two requirements
are satisfied: (1) the petitioner is “in custody,” and (2) the custody is alleged to be “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).
The Court has subject matter jurisdiction over this Petition under § 2241, because Petitioner
(1) was detained within its jurisdiction, by a custodian within its jurisdiction, at the time he filed
his Petition, see Spencer v. Lemna, 523 U.S. 1, 7 (1998) and Braden v. 30th Judicial Circuit Court,
410 U.S. 484, 49-–95, 500 (1973); and (2) asserts that his detention is not statutorily authorized,
see Zadvydas v. Davis, 533 U.S. 678, 699 (2001); Chavez-Alvarez v. Warden York Cty. Prison,
783 F.3d 469 (3d Cir. 2015); Diop v. ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir. 2011).
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B. Analysis
Federal law sets forth the authority of the Attorney General to detain aliens in removal
proceedings.
Title 8 U.S.C. § 1226 governs the pre-removal-order detention of an alien. Section
1226(a) authorizes the Attorney General to arrest and to detain or release, an alien, pending a
decision on whether the alien is to be removed from the United States, except as provided in
subsection (c). Section 1226(a) provides, in relevant part:
(a) Arrest, detention, and release
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; or
(B) conditional parole; . . .
8 U.S.C. § 1226(a).
Certain criminal aliens, however, are subject to mandatory detention pending the outcome
of removal proceedings, pursuant to 8 U.S.C. § 1226(c)(1), which provides in relevant part:
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any offense covered in section
1182(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,
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(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[d] to a term of imprisonment of at
least 1 year, or
(D) is inadmissible under section 1182(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 released on parole,
supervised release, or probation, and without regard to whether the alien may be
arrested or imprisoned again for the same offense.
Id. § 1226(c)(1).
Despite his reliance in his Petition and Reply on cases involving mandatory detention,
Petitioner is being discretionally detained pursuant to § 1226(a), not mandatorily detained under
1226(c). Aliens held pursuant to 8 U.S.C. § 1226(a) are entitled to bond hearings at which they
can secure their release if they can “demonstrate [that] they would not pose a danger to property
or persons and . . . are likely to appear for any future proceedings.” Contant v. Holder, 352 F.
App’x 692, 694–96 (3d Cir. 2009); 8 C.F.R. § 236.1(c)(8). Congress specifically provided
immigration officials with the discretion to grant or withhold release on bond, and “[n]o court may
set aside any action or decision by [immigration officials] under this section regarding the
detention or release of any alien or the grant, revocation, or denial of bond or parole.” 8 U.S.C.
§ 1226(e). District courts sitting in habeas review therefore have no jurisdiction to review the
decision of an immigration judge denying bond. See, e.g., Pena v. Davies, No. 15-7291, 2016
WL 74410, at *2 (D.N.J. Jan. 5, 2016).
Thus, where a § 1226(a) detainee was provided with a bona fide bond hearing, this Court
may not grant him a new bond hearing or order his release, and the petitioner seeking review of
the bond decision must instead either appeal the denial of bond to the Board of Immigration
Appeals or seek his release through filing a request with immigration officials for a bond
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redetermination. Id.; see also Contant, 352 F. App’x at 695. The only situation in which a
discretionary detainee who has received a bond hearing may be entitled to habeas relief arises
where the petitioner can show that his bond hearing was conducted unlawfully or without Due
Process, in which case this Court may have the authority to order a new bond hearing. See, e.g,
Garcia v. Green, No. 16-0565, 2016 WL 1718102, at *3–4 (D.N.J. Apr. 29, 2016).
Here, Petitioner received a bona fide bond hearing before an immigration judge and he
appealed that decision to the BIA. Because Petitioner has received the only relief this Court can
provide to him under § 1226(a) – a bond hearing – the Court will deny his Petition. Petitioner is
free to seek bond redetermination by the immigration judge, as appropriate, under 8 C.F.R. §
1003.19(e).
III. CONCLUSION
For the foregoing reasons, the Petition is denied without prejudice. An appropriate Order
accompanies this Opinion.
s/ Esther Salas
Esther Salas, U.S.D.J.
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