CARDENES v. GREEN

Filing 9

OPINION. Signed by Judge Kevin McNulty on 03/11/2019. (sms)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CARLOS L. C..
Civ. No. 18-8670 (1(M)

Petitioner,
V.

OPINION

CHARLES GREEN,
Respondent.

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

INTRODUCTION

The petitioner, Carlos L. C.,’ is an immigration detainee, currently being held at the
Essex County Correctional Facility in Newark. New Jersey. He is proceeding pro se with a
petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241. For the following reasons, the

habeas petition will be granted insofar as the government will be required to afford the petitioner
a bond hearing to justify his continued detention.
II.

PROCEDURAL HISTORY

Petitioner, a native and citizen of the Dominican Republic, entered the United States as a
lawful pernianent resident in March 1996. In August 2009, Petitioner was convicted of criminal
sexual contact, under N.J. Stat. Ann.

§ 2C:14-2(c)(4) and 2C: 14-3(b). The Department of

Homeland Security, Immigration and Customs Enforcement (“ICE”), took Petitioner into
custody on December 9, 2016, and commenced removal proceedings against him. It seems that
Petitioner has remained in immigration custody under 8 U.S.C.

§ 1226(c) since that time.

Consistent with guidance regarding privacy concerns in social security and immigration cases by
the Committee on Court Administration and Case Management of the Judicial Conference of the United
States, Petitioner is identified herein only by his first name and last initial.

Petitioner has filed a petition for a writ of habeas corpus, seeking his immediate release
on bond, or in the alternative an order directing that he receive an individualized bond hearing at
which the government would bear the burden ofjustifying Petitioner’s continued detention. (DE
1.) Petitioner does not dispute the initial basis for his detention, but he asserts that the length of
his detention has been unduly prolonged to the point of having become unconstitutional under
Diop v. IC’E/Hoineland Sec., 656 F.3d 221 (3d Cir. 2011).
I ordered respondent to file an answer to the petition. (DE 2.) I also ordered the
government to notify the Court within seven days of Petitioner’s release from custody, “as well
as any change in the basis for petitioner’s immigration detention.” (Id.)
The government filed an answer opposing the petition on behalf of respondent Charles
Green, the Warden of the Essex County Correctional Facility. (DE 6.) It argues that the Supreme
Court’s holding in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), abrogated prior court decisions,
including Diop, that used the canon of constitutional avoidance to read a reasonableness limit
into

§ 1226(c). Detention under § 1226(c), says the government, is mandatory until removal

proceedings have concluded. (Id. at 8—10.) The Supreme Court, in the government’s view,
upheld the facial constitutionality of 1226(c), and an as-applied challenge could succeed only
in an extraordinary case. (See ii at 10—22.) In his reply brief Petitioner argues that Diop and its
progeny were not completely abrogated by Jennings. (Sec DE 7.) The government submitted a
sureply. (DE 8.) Because that surreply was submitted without leave of court, I will disregard it,
and caution the government to abide by the local rules in the future.

III.

ANALYSIS
Under 2$ U.S.C.

§ 2241, a district court may exercise jurisdiction over a habeas petition

when the petitioner is in custody and alleges that this custody violates the constitution, laws, or

treaties of the United States. 28 U.S.C.
petitioner may seek

§ 2241(c); Maleng i’. Cook, 490 U.S. 488, 490 (1989). A

§ 2241 relief only in the district in which he is in custody. United States i’.

Figiterva, 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 violatcs the Due Process
Clause of the Fifth Amendment.
Under 8 U.S.C.

§ 1226(c)(l). certain non-citizens with criminal convictions are subject to

mandatory detention while removal proceedings are pending. See Jennings, 138 S. Ct. at 846—47.
Petitioner does not explicitly challenge the basis for his detention under

§ 1226(c); rather, his

petition includes a number of irrelevant arguments directed to detention under 8 U.S.C.

§

1231 (a)(6).2 Petitioner generally claims, however, that his detention has been unduly prolonged,
and that courts, including Diop, have found that detention without a bond hearing can, after a
certain period, become unconstitutional. (See DE I at 5—10.)
In Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court held

§ 1226(c) to be

constitutional on its face. It did so, however, on the assumption that most resulting detentions
would be relatively brief Id. at 517—31 (“In sum, the detention at stake under

§ 1226(c) lasts

roughly a month and a half in the vast majority of cases in which it is invoked, and about five
months in the minority of eases in which the alien chooses to appeal.”). In Diop, the Third
Circuit applied the canon of constitutional avoidance and held that

§ 1226(c) “authorizes only

mandatory detention that is reasonable in length.” Diop, 656 F.3d at 231—35. Thus the statute

2

It appears that Petitioner’s detention thus under § I 226(c)(1 )(B). which applies to a person who
“is deponable by reason of having committed any offense covered in section 1227(a)(2)(.A)(ii), (A)(iii).
(B), (C), or (D),” and § I 227(a)(2)(A)(iii), which renders deponable “[a]nv alien who is convicted ofan
aggravated felony at any time after admission.” 8 U.S.C. § l227(a)(2)(A)(iii). The Third Circuit has found
that a conviction for criminal sexual contact under N.J. Stat. Ann. § 2C: 14-3(b) is an aggravated felony
for immigration purposes. Bontia 1’. U.S. Citizenship & Jninugnztwn Sen’s., 529 F. App’x 236, 23840
(3d Cir. 2013).
3

contains an implicit requirement that detained persons must, at some point, receive bond
hearings to warrant ongoing detention. The point at which a bond hearing would be required,
however, would depend on all the facts of the case. In Chavez-Alvarez v. iVan/en, York County
Prison. 783 F.3d 469 (3d Cir. 2015). the Third Circuit confirmed that the point at which
detention under

§ 1226(c) crosses the permissible line, but announced a rule of thumb that

detention would become constitutionally suspect at some point between 6 and 12 months. See iS.
at 473—78.
In Jennings, supra, however, the Supreme Court abrogated the holdings of Diop and
Chavez-Alvarez, as a matter of statutory interpretation. SpecificaIl. Jennings held that

§ 1226(c)

does not require bond hearings to justify ongoing detention, and that the canon of constitutional
avoidance may not be employed to read such a requirement into the statute. IS. at 842, 846—47.
The government acknowledges, however, that Jennings did not directly analyze the
constitutionality of particular detentions under

§ 1226(c).

Putting these holdings together. I agree with the analysis of Judge Wigenton that one
challenge to a

§ 1226(c) detention still remains available: “an individualized as applied

constitutional challenge to the statute.” Dnden v. Green, 321 F. Supp. 3d 496. 501—02 (D.N.J.
2018) (citing Jennings, 138 S. Ct. at 851—52). To put it another way, for a petitioner in this
situation. “Jennings leaves open only the question of whether

§ 1226(c) is unconstitutional as

applied to the petitioner.” IS. at 502.

Chavez--Alvarez reasoned that, at least where the Government fails to show bad faith on the part
of the petitioner, “beginning sometime after the six-month timeframe [suggested by Demon’, supra], 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.’ 783 F.3d at 478.

I have abbreviated the reasoning of Judge Wigenton’s opinion, with which I agree.
4

The post-Jennings as-applied analysis, as it turns out, is very similar, and perhaps

§ 1226(c) is constitutional

identical, to the former analysis under Diop. Whether detention under

continues to be “a function of the length of the detention,” whereby “the constitutional case for
continued detention without inquiry into its necessity becomes more and more suspect as
detention continues.” Diop. 656 F.3d at 232. 234; see also Chavez-Alvarez, 783 F.3d at 474—75.
Thus, at some point, detention under

§ 1226(c), in an individual case, may become “so

unreasonable as to amount to an arbitrary deprivation of liberty” in violation of the Due Process
Clause. Dnden. 321 F. Supp. 3d at 502; see also Deinore, 538 U.S. at 432; Ohm ‘er-A barer, 783
F.3d at 474.
No particular number of months marks the border between constitutional and
unconstitutional detention, but some guidelines can be gleaned from the case law. Judges in this
district have previously found detention for a year, or just over a year, insufficient to support an
as-applied challenge to a

§ 1226(c) detention. See, e.g., Charles A.

i’.

Green, No. 18-1158, 2018

WL 3360765, at *5 (D.N.J. July 10, 201 8). Longer periods of detention without a bond hearing,
however, have been found to violate due process. See Thomas C. A.
WL4I 10941, at *5_6 (D.N.J. Aug. 29, 2018) (15 months); K.A.

i’.

i’.

Green, No. 18-1004, 2018

Green, No. 18-3436, 2018

WL 3742631, at *4 (D.N.J. Aug. 7,2018) (19 months).
The Petitioner has been detained under

§ 1226(c) for nearly 27 months (or so I am

entitled to assume).5 The government points to continuances that were granted at Petitioner’s

In dictum, while discussing a detention under a different section, § 1226(a), the U.S. Court of
Appeals recently’ noted that “Jennings did not call into question [the] eon.ciitunonal holding in Diop that
detention under § 1226(c) may violate due process if unreasonably long.” Borhor i’. JFhrc/en Kin/son Civ.
Co,t Faeilth’, 906 F.3d 274, 278 (3d Cir. 201$) (emphasis added); see also Din/en. 321 F. Supp. 3d at
502.
The government has been ordered to notify the Court of any change in Petitioner’s detention
status (e.g., release, removal, or transition to detention under another statutory provision), but has not
5

request, but there is no allegation or indication that Petitioner has sought such continuances in
bad faith or for the purposes of delay. I am wary. moreover, of making any ruhng that would
“effectively punish [the petitioner] for pursuing applicable legal remedies.” Leslie v. ,lttornev

Gun.

f U.S., 678

F.3d 265, 270—71 (3d Cir. 2012) (internal quotation marks omitted).

For the petitioner’s continued detention, the government cites the following justifications:
“in order to assure his attendance at removal proceedings: to protect the community against the
possibility that Petitioner, if released, will commit additional crimes; and, if necessary, to assure
his removal from the United States.” (DE 6 at 22.) Those justi fications. however, have avoided
serious scrutiny for a period veil in excess of the presumptive 12 months. The entire point of this
petition is that Petitioner has been detained under

§

1226(c) for a prolonged period of some 27

nionths without any individualized determination as to whether he in fact poses a risk of flight or
any other danger to the community.
Given these circumstances and the length of Petitioner’s detention. I conclude that to
continue the detention without at least a bond hearing would exceed the bounds of due process
under the Fifth Amendment; it would constitute an unconstitutional application of § 1226(c)
under the circumstances of this particular case. Accordingly, I will order the government to
provide the petitioner, assuming he remains in detention under

§

1226(c). with a bond hearing

within 21 days.

filed any such notification. (See DE 2.) I therefore proceed under the assumption that Petitioner remains
in detention under § 1226(c).
6

IV.

CONCLUSION

For the foregoing reasons, the habeas petition (ECF No. 1) will be granted insofar as I
will order that Petitioner. ifhe remains in detention under

§ 1226(c). receive a bond hearing

within 21 days. The petition is otherwise denied. An appropriate order follows.

1)
DATED: March 11,2019
K VINMCNULTY
United States District Judge

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