PRYCE v. GREEN

Filing 15

OPINION. Signed by Judge Stanley R. Chesler on 5/14/2019. (sms)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SHANE PRYCE,

Civil Action No. 18-3501 (SRC)

Petitioner,
v.

OPINION

CHARLES GREEN,
Respondent.

I.

INTRODUCTION
This matter has been opened to the Court by Petitioner’s filing of a habeas petition

pursuant to 28 U.S.C. § 2241, asserting that his continued detention under § 1226(c) without an
individualized bond hearing is an unconstitutional violation of due process under the Fifth
Amendment. For the reasons explained in this Opinion, the Court will grant the writ of habeas
corpus and direct the government to provide Petitioner with an individualized bond hearing
before an immigration judge within 7 days, pursuant to the standards set forth in Diop v.
ICE/Homeland Sec., 656 F.3d 221, 231–35 (3d Cir. 2011).
II.

FACTUAL BACKGROUND
Petitioner has been in ICE custody since June 22, 2017, and is currently detained at the

Essex County Detention Center, Newark, New Jersey. (ECF No. 7-2, Declaration of Deportation
Officer Edwin Gonzalez (and accompanying Exhibits), at ¶ 3.) Petitioner is a native and citizen
of Jamaica who entered the United States at New York, New York, on April 12, 2003 as a

1

Conditional Resident. (Id. at ¶ 4.) His status was adjusted to that of a lawful permanent resident
on February 6, 2007 under section 245 of the Immigration and Nationality Act (Act). (Id.)
On May 15, 2008, Petitioner was arrested in the Township of Hamilton, New Jersey, for
drug offenses. (Id. at ¶ 5.) On March 3, 2010, Petitioner was convicted in the Superior Court of
New Jersey, Mercer County, for distributing, dispensing, or possessing with intent to distribute a
controlled dangerous substance, marijuana, on or within 1,000 feet of school property, in
violation of N.J.S.A. § 2C: 35-7. (Id. at ¶ 7.)
On June 22, 2017, ICE took Petitioner into custody outside of his residence. (Id. at ¶ 8.)
On or about June 27, 2017, DHS filed a Notice to Appear with the Immigration Court at
Elizabeth, New Jersey, dated June 22, 2017, served on Petitioner on June 22, 2017, charging him
with being removable from the United States pursuant to Section 212(a)(2)(A)(i)(II) of the Act,
as amended, in that he was an alien who has been convicted of, or who admits having committed,
or who admits committing acts which constitute the essential elements of a violation of (or a
conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign
country relating to a controlled substance (as defined in Section 102 of the Controlled Substances
Act (21 U.S.C. 802)). (Id. at ¶ 9.)
On February 28, 2018, an Immigration Judge denied Petitioner’s application for relief
from removal. The Immigration Judge ordered Petitioner removed to Jamaica in a written
decision issued from the Immigration Court in Elizabeth, New Jersey. (Id. at ¶ 10.)
Petitioner filed the instant Petition on March 13, 2018, and seeks a bond hearing before
an immigration judge. (ECF No. 1.) On March 30, 2018, Petitioner filed an appeal with the
Board of Immigration Appeals (“BIA”) (ECF No. 7-2, Gonzalez Decl. at ¶ 11.) During the
pendency of this matter, the BIA denied Petitioner’s appeal, and Petitioner subsequently filed a

2

petition for review with the Third Circuit Court of Appeals. On September 25, 2018, the Third
Circuit issued a stay of removal in connection with that petition for review. (See PACER App.
No. 18-2823). Petitioner’s petition for review before the Third Circuit remains pending.
III.

ANALYSIS
Under 28 U.S.C. § 2241, a district court may exercise jurisdiction over a habeas petition

when the petitioner is in custody and alleges that his custody violates the constitution, laws, or
treaties of the United States. 28 U.S.C. § 2241(c); Maleng v. Cook, 490 U.S. 488, 490 (1989). A
petitioner may seek § 2241 relief only in the district in which he is in custody. United States v.
Figueroa, 349 F. App’x 727, 730 (3d Cir. 2009). This Court has jurisdiction over Petitioner’s
claims as he is detained within this district and alleges that his custody violates the Due Process
Clause of the Fifth Amendment.
Petitioner was arrested and detained by Immigration & Customs Enforcement (“ICE”) on
June 22, 2017. Petitioner has now been detained for nearly two years under INA § 236(c), 8
U.S.C. § 1226(c). Petitioner is considered to be in “pre-order removal immigration detention”
because he has been granted a stay of removal by the Third Circuit, and his petition for review is
ongoing. See Leslie v. Att’y Gen., 678 F.3d 265, 270 (3d Cir. 2012.) Therefore, Petitioner is still
subject to mandatory detention pursuant to 8 U.S.C. § 1226(c).
The government asserts that Petitioner’s continued detention without an individualized
bond hearing is authorized by 8 U.S.C. § 1226 and points to the Supreme Court’s decision in
Jennings v. Rodriguez, 138 S.Ct. 830 (2018), which abrogated, at least in part, the Third Circuit’s
prior precedents in Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469 (3d Cir. 2015) and
Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011). Petitioner argues that the
constitutional analyses of Diop and Chavez-Alvarez survive Jennings, and that his continued

3

detention under § 1226(c) without an individualized bond hearing is an unconstitutional violation
of due process under the Fifth Amendment.
The Supreme Court first considered the constitutionality of prolonged detention pursuant
to § 1226(c) in Demore v. Kim, 538 U.S. 510 (2003). There, the Court determined that the
statute was facially constitutional as “[d]etention during removal proceedings is a
constitutionally permissible part of that process.” Id. at 531. In reaching this conclusion, the
Court noted that in most cases detention under the statute lasted only a month and a half and that
even in cases where an appeal was taken to the Board of Immigration Appeals (“BIA”),
detention pursuant to § 1226(c) lasted an average of four months, indicating that detention under
the statute was often brief and had a defined beginning and end point at the conclusion of
removal proceedings. Id. at 529. Because the Court found the statute constitutional, it rejected
Petitioner’s challenge even though Petitioner had spent a period of approximately six months in
detention. Id. at 530. Thus, after Demore it was clear that detention for less than six months was
insufficient to support an as-applied challenge to detention under the statute.
Subsequently, in Diop v. ICE/Homeland Sec., 656 F.3d 221, 231 (3d Cir. 2011), the Third
Circuit applied the principle of constitutional avoidance to § 1226(c), and “conclude[d] that the
statute implicitly authorizes detention for a reasonable amount of time, after which the
authorities must make an individualized inquiry into whether detention is still necessary to fulfill
the statute’s purposes of ensuring that an alien attends removal proceedings and that his release
will not pose a danger to the community.” Because the Third Circuit did “not believe that
Congress intended to authorize prolonged, unreasonable detention without a bond hearing,” it
determined that § 1226(c) must be read to “contain[ ] an implicit limitation of reasonableness:
the statute authorizes only mandatory detention that is reasonable in length [and the statute]

4

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” when this “implicit
limitation” is exceeded. Id. at 235. The determination of whether a given period of detention is
reasonable is a fact specific inquiry “requiring an assessment of all of the circumstances of a
given case” Id. at 234; see also Dryden v. Green, 321 F.Supp.3d 496, 499–500 (D.N.J., 2018)
(explaining same).
Subsequently, in Chavez–Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir.
2015), the Third Circuit again determined that § 1226(c) should be read to contain an implicit
reasonableness limitation, and that detention beyond the point of reasonableness absent a bond
hearing would be unconstitutional. Id. at 475. The Third Circuit further held that, absent bad
faith on the part of Petitioner, “beginning sometime after the six-month timeframe considered by
Demore and certainly by the time [the petitioner] had been detained for one year, the burdens to
[the petitioner’s] liberties [will outweigh] any justification for using presumptions to detain him
without bond to further the goals of the statute.” 1 783 F.3d at 478.
In Jennings v. Rodriguez, 138 S.Ct. 830 (2018), the Supreme Court reversed the Ninth
Circuit holding that three detention provisions of the INA—8 U.S.C. §§ 1225(b), 1226(a), and
1226(c)—did not authorize prolonged detention without a bond hearing. Applying the canon of
constitutional avoidance, the Ninth Circuit had construed these three provisions to require an
automatic bond hearing before the immigration judge (“IJ”) at six months of detention. See

1

On the issue of bad faith, the court acknowledged that “[a]n argument could be made that aliens
who are merely gaming the system to delay their removal should not be rewarded with a bond
hearing that they would not otherwise get under the statute.” Id. at 476. Because the court
concluded that Chavez–Alvarez did not act in bad faith in challenging his removal, it declined to
decide whether an alien’s delay tactics should preclude a bond hearing. Id. at 476.
5

Rodriguez v. Robbins, 804 F.3d 1060, 1078-85 (9th Cir. 2015). The Court rejected the lower
court’s “implausible constructions” of the three detention statutes, and remanded for the Ninth
Circuit to decide in the first instance whether due process requires a bond hearing with the
burden on the government when detention under the three provisions becomes prolonged. Id. at
842-47, 851. As such, the Court in Jennings expressly declined to consider the issue of whether
unreasonably prolonged or indefinite detention under § 1226(c) comports with constitutional due
process requirements. See Lopez v. Sessions, No. 18 CIV. 4189, 2018 WL 2932726 (RWS), at
*13 (S.D.N.Y. June 12, 2018) (“The Court did not reach the merits of the constitutional
challenge before it, instead holding that there was no statutorily-guaranteed right to ‘periodic
bond hearings’ under Sections 1225(b) and 1226(c).”). Post-Jennings, a petitioner may still
bring an as-applied challenge to his prolonged detention. See Dryden, 321 F.Supp.3d at 501
(finding that as-applied challenges remain viable post-Jennings).
Jennings abrogated the Third Circuit’s holdings in Diop and Chavez-Alvarez to the extent
those decisions rely on constitutional avoidance and read an implicit limitation of reasonableness
into § 1226(c). Courts in this District, however, have found “[t]he constitutional reasoning that
underlay the Third Circuit’s invocation of the constitutional avoidance canon still provides some
persuasive guidance to how this Court should address § 1226(c) claims.” See Dryden, 321 F.
Supp. 3d at 502. Although the Third Circuit has not yet provided explicit guidance to lower
courts grappling with Post-Jennings challenges to prolonged detention under § 1226(c), it
recently stated in dicta that “Jennings did not call into question our constitutional holding in
Diop that detention under § 1226(c) may violate due process if unreasonably long.” Borbot v.
Warden Hudson County Correctional Facility, 906 F.3d 274, 278 (3d Cir. 2018) (finding that the

6

reasonableness inquiry it performed in Diop and Chavez-Alvarez is inappropriate in the context
of § 1226(a)).
Here, Petitioner has been detained for nearly two years and argues that his continued
detention under § 1226(c) without a bond hearing is an unconstitutional violation of due process
under the Fifth Amendment. “Freedom from imprisonment—from government custody,
detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due
Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). The government
acknowledges that Petitioner still may make an as-applied challenge to his prolonged detention,
but argue in its initial briefing that Petitioner’s detention had not become unreasonably
prolonged and notes that his protracted detention is the result of Petitioner’s challenge to his
removal. (ECF No. 7, Answer at 12-15.)
The length of Petitioner’s detention well exceeds the outer time limitation of one year set
forth in Chavez-Alvarez. 2 As a general matter, courts in this District have found detention for a
year, or just over a year, insufficient to support an as-applied challenge to a § 1226(c) detention
post-Jennings. See, e.g., Charles A. v. Green, No. 18-1158, 2018 WL 3360765, at *5 (D.N.J.
July 10, 2018). Longer periods of detention without a bond hearing, however, have been found
to violate due process. See Thomas C. A. v. Green, No. 18-1004, 2018 WL 4110941, at *5–6
(D.N.J. Aug. 29, 2018) (15 months); K.A. v. Green, No. 18-3436, 2018 WL 3742631, at *4

2

Some courts in this District have found that the outer limit of detention in Chavez-Alvarez does
not govern reasonableness post-Jennings, even where there has been no showing of Petitioner’s
bad faith. In Dryden v. Green, 321 F. Supp. 3d at 502, for example, the District Court found that
detention for slightly over a year did not support a finding that § 1226(c) is unconstitutional as
applied to Petitioner where the majority of the delay in Petitioner’s immigration results is
directly attributable to Petitioner’s own delay in acquiring counsel and ultimately filing his
petition for relief, and the remaining delay was not the result of any apparent inaction or
unreasonable delay on the part of the Government. Id.; see also Carlos A. v. Green, No. 18-741,
2018 WL 3492150, at *5 (D.N.J. July 20, 2018).
7

(D.N.J. Aug. 7, 2018) (19 months); Carlos L. C. v. Green, 2019 WL 1110388, at *3 (D.N.J. Mar.
11, 2019) (27 months); but see Selvin M. R. v. Green, 2019 WL 981651, at *3 (D.N.J. Feb. 27,
2019) (finding that detention for fourteen months that is largely the result of his own requests for
continuances or other delays in his proceedings did not justify habeas relief).
Here, the Court need not decide whether detention for six months to a year (or slightly
over a year) is unreasonable, as Petitioner has been detained for nearly two years, well beyond
the one-year outer limit set forth Chavez-Alvarez. The government has not argued that Petitioner
is acting in bad faith or lacks viable challenges to his removal. Because Petitioner has been
detained well beyond the outer limit set forth in Chavez-Alvarez and there is no evidence of
Petitioner’s bad faith, the Court finds that his detention has become unreasonably prolonged such
that due process requires that Petitioner be afforded an individualized bond hearing before an
immigration judge. That bond hearing shall be conducted pursuant to the procedures and
standards outlined in Diop. See Borbot, 906 F.3d at 279 (noting that Diop places the burden of
proof on the government in § 1226(c) cases).
IV.

CONCLUSION
For the reasons explained in this Opinion, this Court grants Petitioner’s habeas petition

and directs the government to provide Petitioner with an individualized bond hearing before an
immigration judge within 7 days. An appropriate order follows.

s/ Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
DATED: May 14, 2019.

8