THOMPSON v. EDWARDS
Filing
8
MEMORANDUM OPINION. Signed by Judge Esther Salas on 9/17/18. (cm, )
Not for Publication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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RON EDWARDS,
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Respondent.
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____________________________________:
ORA THOMPSON,
Civil Action No. 18-1006 (ES)
MEMORANDUM OPINION
It appearing that:
1. Petitioner Ora Thompson (“Petitioner”) is currently being detained by the Department
of Homeland Security, Immigration and Customs Enforcement (“DHS/ICE”) at the Hudson
County Jail in Kearney, New Jersey. On January 25, 2018, while she was detained at Hudson
County Correctional Facility in Kearny, New Jersey, Petitioner filed the instant Petition for Writ
of Habeas Corpus under 28 U.S.C. § 2241, challenging her detention pending removal. (D.E. No.
1, Petition (“Pet.”)).
2. Petitioner is a native and citizen of Dominica who entered the United States in 1991,
with authorization to remain in the United States for a temporary period not to exceed February 7,
1992. (D.E. No. 7, Respondent’s Answer (“Answer”) at 14). 1
3. On July 7, 2016, ICE took Petitioner into custody and served her with a Notice to
Appear in removal proceedings, which charged that she is removable from the United States
pursuant to 8 U.S.C. § 1227(a)(1)(B), as “[a]n alien who remained in the United States for a time
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Page numbers reference ECF-generated page numbers.
longer than permitted.” (Answer, Ex. A at 3). Petitioner was also charged as an alien with a
conviction for an aggravated felony; specifically, illicit trafficking in a controlled substance, as
defined at 8 U.S.C. § 1101(a)(43)(B); 8 U.S.C. § 1227(a)(2)(A)(ii); an alien with a conviction for
a controlled substance offense pursuant to 8 U.S.C. 1227(a)(2)(B)(i); and as an alien with
convictions for two crimes involving moral turpitude not arising out of a single scheme of criminal
misconduct pursuant to 8 U.S.C. § 1227(a)(2)(ii). (Id. at 3-4).
4. On August 10, 2016, an Immigration Judge (“IJ”) held a master calendar hearing. (Id.
at 4). At this hearing, Petitioner submitted an application for relief from removal. (Id.).
5. On October 4, 2016, a different IJ conducted a merits hearing in Petitioner’s removal
proceedings. (See Answer, Ex. D). Petitioner sought withholding of removal under Section
241(b)(2) of the Act and the Convention Against Torture, and in the alternative, deferral of removal
under the Convention Against Torture. (Id. at 4). The IJ found that the Petitioner failed to
establish that she would suffer torture at the hands of or at the acquiescence of the Dominica
government as a result of her homosexuality as required under the Convention Against Torture.
(Id.). The IJ denied Petitioner’s requests for relief and ordered her returned to Dominica. (Id. at
13). Petitioner filed an appeal of the IJ’s decision with the Board of Immigration Appeals (“BIA”)
and on February 26, 2017, the BIA dismissed the appeal. (See Answer, Ex. E at 2). On March
13, 2017, Petitioner filed an appeal of the BIA’s dismissal with the Second Circuit. Civil Action
No. 17-0726 (2d Cir. 2017). On May 9, 2017, a travel document was issued for Petitioner.
(Answer, Ex. A at 4). On June 2, 2017, ICE held a post-order custody review and continued
Petitioner’s detention. (Id.). On September 28, 2017, the Second Circuit granted Petitioner’s
motion for stay of removal. (Id.). The appeal is currently pending.
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6. On January 25, 2018, Petitioner filed the instant Petition for a Writ of Habeas Corpus
in this Court.
(See Pet.).
She argues that her detention has been “excessive,” she has a
“likelihood of success in Second Circuit appeal,” she has been “unable to have due process,” and
she has “not committed a violent crime.” (Id. at 6-8). Petitioner requests that this Court “release
[her] on an order of supervision.” (Id. at 8).
7. Respondent acknowledges that Petitioner has been in immigration custody since July
2016, but argues that because she is detained pursuant to 8 U.S.C. § 1226(c), she is subject to
lawful mandatory detention.
(Answer at 17).
More specifically, Respondent submits that
Petitioner’s conviction for an aggravated felony and other crimes qualifies as her the type of alien
that the statute seeks to detain. (Id. at 21-23).
8. 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: (i) the petitioner is “in custody,” and (ii) 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).
9. The Court has subject matter jurisdiction over this Petitioner under § 2241, because
Petitioner was detained within its jurisdiction by a custodian within its jurisdiction, at the time she
filed her petition. See Spencer v. Kemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit
Court of Ky., 410 U.S. 484, 490-95, 500 (1973).
10. In 2018, the United States Supreme Court in Jennings v. Rodriguez, 138 S. Ct. 830
(2018), held that the Ninth Circuit Court of Appeals erred by interpreting an implicit six-month
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limitation on detention pursuant to § 1226(c) absent a bail hearing. Jennings essentially abrogated
the Third Circuit Court of Appeals’ decisions in Diop v. ICE/Homeland Security, 656 F.3d 221,
231-35 (3d Cir. 2011); Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir.
2015), which read implicit time limitations into statutes such as § 1226(c). The Jennings Court
explained,
[Section] 1226 applies to aliens already present in the United States.
Section 1226(a) creates a default rule for those aliens by
permitting—but not requiring—the Attorney General to issue
warrants for their arrest and detention pending removal proceedings.
Section 1226(a) also permits the Attorney General to release those
aliens on bond, “[e]xcept as provided in [§ 1226 (c)].” Section
1226(c) states that the Attorney General “shall take into custody any
alien” who falls into one of the enumerated categories involving
criminal offenses and terrorist activities. 8 U.S.C. § 1226(c)(1).
Section 1226(c) then goes on to specify that the Attorney General
“may release” one of those aliens “only if the Attorney General
decides” both that doing so is necessary for witness-protection
purposes and that the alien will not pose a danger or flight risk. §
1226(c)(2) (emphasis added).
[Section] 1226(c) does not on its face limit the length of the
detention it authorizes. In fact, by allowing aliens to be released
“only if” the Attorney General decides that certain conditions are
met, § 1226(c) reinforces the conclusion that aliens detained under
its authority are not entitled to be released under any circumstances
other than those recognized by the statute. And together with §
1226(a), § 1226(c) makes clear that detention of aliens within its
scope must continue “pending a decision on whether the alien is to
be removed from the United States.” § 1226(a) . . . .
[T]he Court of Appeals held [] that § 1226(c) should be interpreted
to include an implicit . . . time limit on the length of mandatory
detention . . . . [T]hat interpretation falls far short of a plausible
statutory construction.
In defense of th[is] statutory reading, respondents first argue that §
1226(c)’s “silence” as to the length of detention “cannot be
construed to authorize prolonged mandatory detention, because
Congress must use ‘clearer terms’ to authorize ‘long-term
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detention.’ ” . . . . But § 1226(c) is not “silent” as to the length of
detention. It mandates detention “pending a decision on whether
the alien is to the removed from the United States,” § 1226(a), and
it expressly prohibits release from detention except for narrow,
witness-protection purposes. Even if courts were permitted to
fashion . . . time limits out of statutory silence, they certainly may
not transmute existing statutory language into its polar opposite.
The constitutional-avoidance canon does not countenance such
textual alchemy.
Indeed, we have held as much in connection with § 1226(c) itself.
In Demore v. Kim, 537 U.S., at 529, [] we distinguished § 1226(c)
from the statutory provision in Zadvydas by pointing out that
detention under § 1226(c) has “a definite termination point”: the
conclusion of removal proceedings. As we made clear there, that
“definite determination point”—and not some arbitrary time limit
devised by the courts—marks the end of the Government’s
detention authority under § 1226(c).
Respondents next contend that § 1226(c)’s limited authorization for
release for witness-protection purposes does not imply that other
forms of release are forbidden, but this argument defies the statutory
text. By expressly stating that the covered aliens may be released
“only if” certain conditions are met, 8 U.S.C. § 1226(c)(2), the
statute expressly and unequivocally imposes an affirmative
prohibition on releasing detained aliens under any other conditions.
....
We hold that § 1226(c) mandates detention of any alien falling
within its scope and that detention may end prior to the conclusion
of removal proceedings “only if” the alien is released for witnessprotection purposes.
138 S. Ct. at 846-47.
11. Petitioner is currently subject to a stay from removal entered by the Second Circuit
Court of Appeals. Because she is currently detained pursuant to 8 U.S.C. § 1226(c), she shall
remain so detained until such time as the Second Circuit either vacates the stay or issues a final
order in her petition for review of the matter. See Leslie v. Attorney Gen., 678 F.3d 265, 268-71
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(3d Cir. 2012). Section 1226(c) authorizes and mandates detention throughout a petitioner’s
removal proceedings so long as he is not placed into witness protection. See Jennings, 138 S. Ct.
at 846-47. Petitioner is only entitled to relief from her ongoing immigration detention pending
the conclusion of her proceedings before the Second Circuit if she were to show that the application
of the statute to her is unconstitutional under the circumstances. See, e.g., Dryden v. Green, No.
18-2686, 2018 WL 3062909, at *3-4 (D.N.J. June 21, 2018).
12. Petitioner’s current period of immigration detention has lasted approximately twentysix months. Once Petitioner filed a petition for review of the final order of the BIA, Petitioner
was granted a stay of removal on her case by the Second Circuit, and her petition before the Court
of Appeals remains pending. Petitioner’s receipt of a stay suggests that her actions amount to a
bona fide effort to pursue available legal remedies. See Leslie, 678 F.3d at 271.
13. The record does not reflect that Petitioner requested any continuances or delayed her
proceedings in anyway. See Dryden, 2018 WL 3062909 at *5 (post-Jennings opinion denying
bond hearing citing to Petitioner’s “self-inflicted delays, and the lack of any bad faith or
unreasonable action on the part of the Government”). In the absence of any indication of delay
tactics on the part of the Petitioner, it appears that her ongoing detention has become so
unreasonably long as to amount to a denial of due process. See Thomas C.A. v. Green, No. 181004, 2018 WL 4110941 (D.N.J. Aug. 29, 2018); K.A. v. Green, No. 18-3436, 2018 WL 3742631
(D.N.J. Aug. 7, 2018); see also Vega v. Doll, No. 17-1440, 2018 WL 3765431 (M.D. Pa. July 11,
2018) (post-Jennings opinions granting bond hearings to § 1226(c) immigration detainees held for
fifteen months, nineteen months and twenty-months, respectively). This Court will therefore
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grant Petitioner’s habeas petition and order that an immigration judge provide Petitioner with a
bond hearing within ten days. 2
14.
At that hearing, “the Government [will be required] to produce individualized
evidence that [Petitioner’s] continued detention was or is necessary” to further the goals of §
1226(c)—specifically that Petitioner presents neither a danger to the community nor a flight risk.
See Chavez-Alvarez, 783 F.3d at 477-78 (3d Cir. 2015). An appropriate Order accompanies this
Memorandum Opinion.
s/ Esther Salas
Esther Salas, U.S.D.J.
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This Court is not authorized to order Petitioner’s release as she requests in her petition. The Third Circuit
Court of Appeals has repeatedly held that a bond hearing is the appropriate relief for immigration detainees challenging
their prolonged detention. See, e.g., Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011); Chavez-Alvarez v.
Warden York Cty. Prison, 783 F.3d 469 (3d Cir. 2015).
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