SAHIN v. CHARLES L. GREEN et al

Filing 2

OPINION. Signed by Judge Kevin McNulty on 01/08/2018. (ek)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HAUL SAHIN.
Civ. No. 17-13537 (KM)

Petitioner,
V.

OPINION

CHARLES U. GREEN et al..
Respondents.

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

INTRODUCTION

The petitioner. Haul Sahin, is an immigration detainee currently held 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.

For the following reasons, the habeas

petition will be summarily dismissed without prejudice.
II.

BACKGROUND

Mr. Sahin explains that he is a lawful permanent resident and that he was taken into
immigration custody on December 1,2017. His petition challenges this immigration detention
and seeks an order directing his release or requiring a removal hearing before an immigration
judge physically located in New Jersey. Mr. Sahin complains that he did not receive a notice to
appear outlining his charges until fourteen days after his detention began, and thus was “deprived
of his right to contest the charges for which [he] has been detained.” He contends that his
detention is unlawful as it is based on a conviction which is still on direct appeal. Additionally,
Mr. Sahin complains that his appearances have been by “televideo” before an immigration judge
who is in Puerto Rico.

N

DISCUSSION

III.

Upon the filing of a habeas petition, the Court conducts an initial screening under 28
U.S.C.

§ 2243,

which provides in relevant part,

A court, justice or judge entertaining an application for a writ of habeas corpus
shall forthwith award the writ or issue an order directing the respondent to show
cause why the writ should not be granted, unless it appears from the application
that the applicant or person detained is not entitled thereto.

Under Rule 4 of the Rules Governing
of the Rules Governing

§

§ 2254 Cases (applied in this proceeding under Rule

1(b)

2254 Cases), the Court must dismiss a habeas petition “[iJf it plainly

appears from the face of the petition and any exhibits annexed to it that the petitioner is not
entitled to relief” Rules Governing

§

2254 Cases, Rule 4, 28 U.S.C.A. foil.

§

2254; see also

Lonchar v Thomas, 517 U.S. 314, 320 (1996).

Under 28 U.S.C.

§ 2241(c), a federal court may consider a petition for a writ of habeas

corpus if the petitioner is “in custody” and alleges that the custody violates “the Constitution or
laws or treaties of the United States.” 28 U.S.C.

§

2241(c)(3); see also Maleng v. Cook, 490 U.S.

488, 490 (1989). The Immigration and Nationality Act (“[NA”) permits. upon a warrant issued
by the Attorney General of the United States, the arrest and detention of an alien pending a
determination as to removal. 3 U.S.C.

§

1226(a); see also Demore v. Kim, 538 U.S. 510, 531

(2003) (“Detention during removal proceedings is a constitutionally permissible part of the
process.”). The INA section governing “Apprehension and detention of aliens” bars review of
the Attorney General’s discretionary’ decisions, specifically stating that “[nb court may set aside
any action or decision by the Attorney General 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).

Furthermore, under [NA as amended by the REAL ID Act, this court is deprived of any
“jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or

action by the Attorney General to commence [removal] proceedings.” 8 U.S.C.

§

1252(g); see

also Reeves v. Johnson, No. 15-2532, 2015 WL 4133204, at *3 (D.N.J. July 7, 2015) (“Unless
Plaintiffs arrest and his resulting constitutional injury occurred outside of the Attorney
General’s decision to commence proceedings against him

.

.

.

,this Court lacks jurisdiction to

hear his claims.”).
Mr. Sahin first argues thai his detention is improper because the conviction which is the
basis for his detention is still pending upon direct appeal.1 A conviction will not be treated as
final for immigration purposes until direct appeals are completed. See Matter of Ozkok, 19 I. &
N. 546. 548—52 & n.7 (B.I.A. 1988), superseded in part by statute, 8 U.S.C.
Court is barred by

§

§

I lOl(a)(48). The

1252(g) from considering such questions, which may be raised during

proceedings before an immigration judge. The role of this Court in hearing a habeas petition is to
assess the propriety of a petitioner’s detention, not to decide issues that may ultimately be
dispositive of Mr. Sahin’s removability. SeeS U.S.C.

§

1229a(a)(3) (“[A] proceeding under this

section shall be the sole and exclusive procedure for determining whether an alien may be
removed from the United States.”). The issue raised by Mr. Sahin seems to concern whether
commencement of removal proceedings was proper; it does not bear directly on the narrow issue
of the propriety of his detention. I therefore cannot consider it.
Mr. Sahin further argues that he did not receive a notice to appear, under 8 U.S.C.

§

1229(a), until fourteen days after being detained. Even assuming that failure to serve a notice to
appear renders a detention improper,2 that defect has now been cured. Accordingly, this portion
Mr. Sahin notes that the State, not he, initiated this appeal, but he contends that the
identity of the appellant does not alter the fact that his conviction is still not final. The Court does
not reach this issue in rendering its present decision.
That is not at all clear, but I assume it for present purposes. Section 1226(a) permits
detention of an alien “[o]n a warrant issued by the Attorney General,” and that section makes no
2

3

of Mr. Sahin’s petition is moot. See Blanciak

i’.

Allegheny Ludhim Corp., 77 F.3d 690, 698 (3d

Cir. 1996).
Mr. Sahin additionally contends that the holding of hearings before a remote immigration
judge by video conference, as opposed to in-person, has violated his due process rights. As a
matter of law, this contention is incorrect. Under 8 U.S.C.

§

1229a, immigration judges are

explicitly authorized to conduct proceedings by video conference. 8 U.S.C.

§

1229a(b)(2)(A)(iii).

Furthermore, the Court of Appeals for the Third circuit has previously found no fault with this
practice. Melgar v. Attorney Gen. of US., 442 F. App’x 695, 697—98 (3d Cir. 2011).
Although Mr. Sahin does not directly challenge the length of his detention as such, I
consider it briefly. Under 8 U.S.C.
pre-removal detention.

u.s.c.

§

§

1226(c), certain criminal aliens are subject to mandatory

1226(c)(1). The united States Court of Appeals for the Third

Circuit, in Diop v. ICE/Homeland Security, 656 F. 3d 221 (3d Cir. 2011), held that

§

1226(c)”

authorizes only mandatory detention that is reasonable in length,” after which a detainee would
be entitled to a bond hearing. Id. at 234—35. The Third Circuit subsequently noted that a
continued pre-removal detention under

§

1226(c) without a bond hearing would become

constitutionally problematic at some point after six months of detention, and certainly within one
year. Chavez-Alvarez v. Warden York C. Prison, 783 F.3d 469, 478 (3d Cir. 2015). Mr. Sahin
has been detained forjust over one month, and a challenge to the duration of his detention would
*3
thus be premature. See Midlings v. AvHes, Civ. A. No. 134111 (JLL), 2014 WL 1234469, at
(D.N.J. Mar. 25, 2014). Mr. Sahin may, of course, reasserE a claim challenging his post-removal
detention should the government fail to effect his removal within a reasonable time.

mention of notices to appear. See 8 U.S.C. § 1226. The statutory provision governing the timing
of service of notices to appear requires that they be served at least ten days before the hearing in
question. See 8 U.S.C. § 1229(b)(1).
4

IV.

CONCLUSION

For the foregoing reasons, the habeas petition will be summarily dismissed without
prejudice. An appropriate order will be entered.

/

DATED: January 8, 2018

KE INMCNULTY
United States District Judge

D