ESPICHAN v. GREEN

Filing 9

OPINION. Signed by Judge Susan D. Wigenton on 10/29/2018. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ARTURO E.,

Civil Action No. 18-9283 (SDW)
Petitioner,

v.

OPINION

CHARLES GREEN,
Respondent.

WIGENTON, District Judge:
Presently before the Court is the pro se petition for a writ of habeas corpus of Petitioner,
Arturo E., filed pursuant to 28 U.S.C. § 2241. (ECF No. 1). Following an order to answer, the
Government filed a response to the Petition (ECF No. 7), to which Petitioner has replied. (ECF
No. 8). For the following reasons, this Court will grant Petitioner’s habeas petition and will direct
an immigration judge to conduct a bond hearing for Petitioner within ten days.

I. BACKGROUND
Petitioner is a native and citizen of Peru who was first admitted into the United States in
March 1990. (ECF No. 7 at 29). Following multiple criminal convictions in New Jersey, including
convictions for sexual assault and weapons charges, Petitioner was served with a notice to appear,
taken into immigration custody pursuant to 8 U.S.C. § 1226(c) on August 11, 2016, and placed in
removal proceedings based on his criminal history. (Id. at 29-39). Although Petitioner’s removal
proceedings began in September 2016, because of numerous requests for extensions, the firing of
Petitioner’s first attorney, and continuance requests by Petitioner, Petitioner’s removal
proceedings did not conclude before the immigration judge until he was ordered removed in June
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2018. (Id. at 41-45). Following his removal order, Petitioner filed an appeal with the Board of
Immigration Appeals, which remains pending at this time. (See ECF No. 8 at 22).

II. DISCUSSION
A. Legal Standard
Under 28 U.S.C. § 2241(c), habeas relief may be extended to a prisoner only when he “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 jurisdiction over such a petition if the petitioner is “in custody”
and the custody is allegedly “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). As Petitioner is
currently detained within this Court’s jurisdiction, by a custodian within the Court’s jurisdiction,
and asserts that his continued detention violates due process, this Court has jurisdiction over his
claims. Spencer v. Kemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Court, 410 U.S.
484, 494-95, 500 (1973); see also Zadvydas v. Davis, 533 U.S. 678, 699 (2001).

B. Analysis
In his petition, Petitioner contends that his ongoing detention pursuant to 8 U.S.C. §
1226(c)1 violates his right to Due Process as he has been held overlong without a bond hearing, an

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In his reply brief, Petitioner raises for the first time two additional claims. First, he alleges that
the Court should not consider him subject to § 1226(c) detention because he is challenging his
convictions via post-conviction relief petitions. Second, he argues that the Court should overrule
the immigration judge’s rejection of his derivative citizenship argument and find him to be a
United States citizen based on the naturalization of his father. A habeas petitioner “may not raise
new issues and prevent new factual materials in a reply brief that it should have raised in its initial
brief.” Judge v. United States, 119 F. Supp. 3d 270, 284 (D.N.J. 2015) (quoting D’Allessandro v.
Bugler Tobacco Co., No. 05-5051, 2007 WL 130798, at *2 (D.N.J. Jan. 12, 2007)). Because these
arguments were raised for the first time in reply, this Court would be free to disregard Petitioner’s
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argument he bases on the Third Circuit decisions in Diop v. ICE/Homeland Sec., 656 F.3d 221,
231-35 (3d Cir. 2011), and Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir.
2015). As this Court recently explained in Dryden v. Green, 321 F. Supp. 3d 496, 500-02 (D.N.J.
2018), both Diop and Chavez-Alvarez placed limitations on the length of time an alien could be
held without bond under § 1226(c) based on an application of the canon of constitutional avoidance
– a use of the canon which the Supreme Court rejected in its recent decision in Jennings v.
Rodriguez, 538 U.S. ---, ---, 138 S. Ct. 830, 846-47 (2018). Thus, the Supreme Court, in deciding
Jennings abrogated the direct holdings of both of those cases, a point the Third Circuit itself has
recently recognized. See, e.g., Borbot v. Warden Hudson Cnty. Corr. Facility, --- F.3d ---, 2018
WL 4997934, at *4 (3d Cir. Oct. 16, 2018).
As both the Third Circuit and this Court have recognized, however, the abrogation of the
constitutional avoidance holdings of Diop and Chavez-Alvarez did not rob those two cases of all
effect – “Jennings did not call into question [the] constitutional holding in Diop [and ChavezAlvarez] that detention under § 1226(c) may violate due process if unreasonably long.” Id.; see
also Dryden, 321 F. Supp. 3d at 502. Even after Jennings, it remains true that the “constitutionality
of [§ 1226(c) detention] is a function of the length of the detention [and t]he constitutional case
for continued detention without inquiry into its necessity becomes more and more suspect as

new claims for that reason alone. Id. In any event, Petitioner’s collateral challenges have no effect
upon his § 1226(c) status unless and until Petitioner overturns his convictions, see, e.g., Medina
Lopez v. Atty’ Gen. of U.S., 425 F. App’x 146, 150 (3d Cir. 2011); Paredes v. Att’y Gen. of U.S.,
528 F.3d 196, 198 (3d Cir. 2008), and this Court has no jurisdiction to consider Petitioner’s
derivative citizenship claim as it has not been properly exhausted and only the Board of
Immigration Appeals and Court of Appeals for the Third Circuit have appellate jurisdiction to
review the merits of the immigration judge’s determinations. See, e.g., Bryan v. U.S. Citizenship
& Immigration Servs., 506 F. App’x 150, 151 (3d Cir. 2012); Jordon v. Att’y Gen. of U.S., 424
F.3d 320, 326-27 (3d Cir. 2005); Todd-Murgas v. Samuels, No. 07-1644, 2007 WL 1202726, at
*2-4 (D.N.J. Apr. 19, 2007).
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detention continues,” and “any determination on reasonableness [must be] highly fact specific.”
Chavez-Alvarez, 783 F.3d at 474-75; see also Diop, 656 F.3d at 232, 234. Ultimately, the detention
of an alien will amount to an unconstitutional application of § 1226(c) where the alien’s detention
is so prolonged that it has become “so unreasonable [that it] amount[s] to an arbitrary deprivation
of liberty [which] cannot comport with the requirements of the Due Process Clause.” Dryden, 321
F. Supp. 3d at 502; see also Demore, 538 U.S. at 432; Chavez-Alvarez, 783 F.3d at 474. It also
remains true, however, that “aliens who are merely gaming the system to delay their removal
should not be rewarded with a bond hearing that they would otherwise not get under the statute.”
Chavez-Alvarez, 783 F.3d at 476. Since Jennings, this Court and others in this District have
applied this framework and have generally found that detention for just over a year pursuant to §
1226(c) is insufficient to amount to an arbitrary deprivation of liberty and will thus not suffice to
prove that the statute has been unconstitutionally applied. See, e.g., Dryden, 2018 WL 3062908
at *4-5 (detention for just over a year not unconstitutional); Charles A. v. Green, No. 18-1158,
2018 WL 3350765, at *5 (same); Carlos A. v. Green, No. 18-741, 2018 WL 3492150, at *5
(detention for just over 13 months not unconstitutional). Significantly longer periods of detention,
however, have been determined to be so prolonged as to be arbitrary without a bond hearing. See,
e.g., K.A. v. Green, No. 18-3436, 2018 WL 3742631, at * 4 (D.N.J. Aug. 7, 2018) (detention of
nineteen months in the absence of bad faith on Petitioner’s part warranted a bond hearing); C. A.
v. Green, No., 2018 WL 4110941, at *5-6 (D.N.J. Aug. 29, 2018) (detention of fifteen months in
the absence of bad faith sufficient to warrant a bond hearing under the circumstances).
In this matter, Petitioner has been detained for more than two years and is not yet subject
to a final order of removal as his appeal currently remains pending before the Board of Immigration
Appeals. The length of Petitioner’s detention alone gives the Court pause – Petitioner’s current

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detention has continued for nearly twice as long as the longest period of detention which this Court
has found reasonable in previous post-Jennings cases. Length alone, however, is not the only
factor which the Court must consider in determining whether Petitioner’s detention has become
arbitrary and thus unconstitutional – the Court must also consider whether there is evidence of bad
faith or dilatoriness on the part of Petitioner such that he has merely gamed the system to acquire
a bond hearing to which he is otherwise not entitled. The Court recognizes that the majority of
Petitioner’s period of detention has been the result of Petitioner’s own actions including the firing
of Petitioner’s initial attorney, several instances during which Petitioner’s attorney failed to appear,
and the seeking of numerous continuances and adjournments to provide Petitioner with time to
prepare his derivative citizenship claim and to gather evidence from Peru in support of that claim.
In total, Petitioner requested more than a dozen extensions or continuances, and either Petitioner
or his attorney appear to have been responsible for approximately eighteen months of delay in this
matter. (See ECF No. 7 at 41-45). The Government, in turn, appears to have been responsible for
little delay and the immigration court itself can be attributed with responsibility for approximately
four months of delay prior to the immigration judge’s decision in late June 2018, which was in
part the result of Petitioner’s withdrawal of his initial petition for relief from removal. (Id.). Since
that decision and Petitioner’s appeal, four more months have passed while Petitioner’s appeal has
remained pending before the Board. While the considerable delay on the part of Petitioner is
certainly questionable, this Court finds nothing in the record which would support a conclusion
that Petitioner was acting in bad faith or that he sought continuances merely to extend the length
of his detention in order to receive a bond hearing. Petitioner did not file his current habeas petition
until he had been detained for more than a year and a half. It appears that the delay, while likely

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longer than was strictly necessary, was the result of Petitioner’s attempts to obtain the documents
and evidence needed to support his claims.
In sum, this Court does not find that Petitioner acted merely to game the system. Given
the considerable period of time Petitioner has been detained, this Court concludes that continued
detention absent a bond hearing would be sufficiently arbitrary to amount to an unconstitutional
application of § 1226(c). Petitioner shall therefore be granted a bond hearing. At that bond
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 ensuring
that Petitioner presents neither a danger to the community nor a flight risk.” K.A., 2018 WL
3742631 at *4 (quoting Chavez-Alvarez, 783 F.3d at 477-78).

III. CONCLUSION
For the reasons expressed above, this Court grants Petitioner’s habeas petition and will
direct an immigration judge to hold a bond hearing for Petitioner within ten days. An appropriate
order follows.

s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge

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