FRANCOIS v. GREEN

Filing 7

OPINION. Signed by Judge Kevin McNulty on 10/18/2019. (sm)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ERNST F.,
Civ. No. 19-10189 (KM)

Petitioner,
V.

OPINION

CHARLES GREEN,
Respondent.

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

INTRODUCTION

Petitioner, Ernst F.,’ is an immigration detainee, presently 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 Petitioner will be granted a bond hearing.
II.

PROCEDURAL HISTORY

Petitioner, a native and citizen of Haiti, entered the United States as a P23 Immigrant on
March 18, 1988. In March 2004, Petitioner was convicted in the Superior Court of New Jersey,
Essex County of Reckless Manslaughter, in violation of N.J. Stat. Ann.

§

2C:1 1-4(B)(1);

Unlawful Possession of a Weapon, to wit: a handgun, in violation of N.J. Stat. Ann.

§ 2C:39-

5(B); and Possession of a Weapon for an UnlawfuL Purpose, violation of N.J. Stat. Ann,

§ 2C:39-

4(A). Petitioner was sentenced to eighteen years imprisonment. (DE 4-3, at 8-10.)

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.

On January 4,2017, while incarcerated in East Jersey State Prison, Petitioner was
interviewed by Immigrations and Customs Enforcement (“ICE”). (DE 4-2.) ICE determined that
Petitioner was subject to removal and subsequently issued Petitioner a Notice to Appear,
instituting removal proceedings against him. (DE 4-1.) On September 1,2017, Petitioner was
detained by ICE pursuant to 8 U.S.C.

§

1226(c) and placed into immigration detention at the

Essex County Correctional Facility. Petitioner has remained in immigration custody since that
time.
On July 25. 2018, Petitioner submitted an Application for Asylum. Withholding of
Removal, and Relief under the Convention Against Torture. (DE 4-5. at 4.) On December 21,
2018. following an individualized hearing on the merits of his application, Petitioner’s request
for asylum was denied by an Immigration Judge. (Ict at 21.) Petitioner thereafter filed an appeal
to the Board of Immigration Appeals (“BIN’). (DE 4-6.) On March 27, 2019, Petitioner also
filed this petition for a writ of habeas corpus, seeking release or an individualized bond hearing
tojustif’ his continued detention. (DE 1.) Petitioner does not dispute the initial basis for his
detention, but asserts that his detention has been unduly prolonged to the point of having become
unconstitutional. (Id. at 6.)
I ordered the government to file an answer to the petition. (DE 2.) 1 also ordered the
government to notif’ 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.) When the government
filed their answer, they informed the Court that the BIA had dismissed Petitioner’s appeal on
May 21, 2019. and that Petitioner was now being detained pursuant to8 U.S.C.

§

1231(a). (DE

4-6.) Petitioner submitted two briefs in reply, both of which indicated that he had sought review
from the Court of Appeals for the Third Circuit and that he had been granted a stay by the Third

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Circuit. (DE 5, 6.) From court records, I note that on July 1,2019, the Third Circuit did indeed
grant Petitioner a temporary stay of removal. See Francois

i

Att’y Gen, of/lw U.S., No. 19-1035

(3d Cir.). Petitioner’s custody status therefore reverted to pre-removal detention pursuant to
1226(c). See Leslie

i

§

Ati ‘v Gen., 678 F.3d 265, 270 (3d Cir. 2012) (holding that an immigration

detainee will revert to pre-removal status where the detainee is granted a stay of removal by a
court of appeals.) Petitionefs proceeding betbre the Third Circuit remains pending, and no
further update of Petitioner’s custody status has been submitted to this Court.
III.

Under 28 U.S.C.

ANALYSIS

§ 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 v

Cook, 490 U.S. 488, 490 (1989). A

§ 2241 relief only in the district in which he is in custody.

United Swies

i’.

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 Fifih Amendment.
Under 8 U.S.C.

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

mandatory detention while removal proceedings are pending. See ,Jennings

i’.

Rodriguez, 138 S.

Ct. 830, 846—47 (2018). 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 cases in which the alien chooses to appeal.”)
In Diop v ICE/Homeland Sec., the Third Circuit applied the canon of constitutional avoidance

3

and held that

§

1226(c) “authorizes only mandatory detention that is reasonable in length.” 656

F.3d 221, 231—35 (3d Cir. 2011). Thus, it found that the statute contains an implicit requirement
that detained persons, 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 Warden York Ctv. PrLvon, the Third Circuit cont5rmed that there is no
set 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.2 783 F.3d 469, 473—78 (3d Cir. 2015).
In Jennings, however, the Supreme Court abrogated the direct holdings of Diop and
Chavez-A h’arez, as a matter of statutory interpretation. Specifically, Jennings held that

§

1226(c)

does not require bond hearings to justi& ongoing detention and that the Canon of constitutional
avoidance may not be employed to read such a requirement into the statute. Id. at 842, 846—47.
However, the Jennings Court did not directly analyze the constitutionality of particular
detentions under

§

1226(c).

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

§

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

to the statute.” Dryden

i’.

Green, 321 F. Supp. 3d 496, 501—02 (D.N.J. 2018) (citing Jennings,

138 S. Ct. at 85 1—52). To put it another way, for a petitioner in this situation, “Jennings leaves

In Chavez-Alvarez, the Third Circuit reasoned that, at least where the government fails to show
bad faith on the part of the petitioner, “beginning sometime after the six-month tirneirame [suggested by
Demore], and certainly by the time [the petitioner] has 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.” Chavez-Alvarez, 783 F.3d at 478.
2

4

open only the question of whether

§

1226(c) is unconstitutional as applied to the petitioner.”3 Id.

at 502.
The post-Jennings as-applied analysis, as it turns out, is very’ similar, and perhaps
identical, to the former analysis under Diop. Whether detention under

§

1226(c) is constitutional

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. Dryden, 321 F. Supp. 3d at 502; see also Demore, 538 U.S. at 432; Chavez-Alvarez, 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. 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 Greet,, 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 (D.N.J. Aug. 7,2018) (19 months).

I have abbreviated the reasoning of Judge Wigenton’s opinion, with which I agree. In dictum,
while discussing a detention under a different section, § 1226(a), the Third Circuit recently noted that
“Jennings did not call into question the constitutional holding in Diop that detention under § 1226(c) may
violate due process if unreasonably long.” Borbot v. IVarden Hudson Ct;’. Coit Facility, 906 F.3d 274,
278 (3d Cir. 2018) (emphasis added); see also Dn’den, 321 F. Supp. 3d at 502.
5

Here, Petitioner has been detained for over two years. Although it appears that various
continuances were granted at Petitioner’s request during his immigration proceedings, there is no
indication that Petitioner requested these continuances in bad faith or for the purposes of delay.
Nor is the government responsible for Petitioner’s having obtained a stay and reverted to pre
removal status. Still, the Third Circuit has cautioned against denying relief when to do so would
“effectively punish [the petitioner] for pursuing applicable legal remedies.” Leslie v. An y Gen.
O/U.S., 678 F.3d 265, 270—71 (3d Cir. 2012) (internal quotation marks omitted), abrogated in
part and on oilier grounds by Jennings, 138 S. Ct. at 847.
Given these circumstances and the length of petitioner’s detention, I conclude that
continuing the detention without a bond hearing would be arbitrary’ under the Due Process
Clause of the Fifth Amendment and an unconstitutional application of 1226(c). Accordingly, I
will order the government to provide Petitioner with a bond hearing within 14 days.
IV.

CONCLUSION

For the foregoing reasons, the habeas petition (DE 1) will be granted insofar as I will
order that Petitioner receive a bond hearing within 14 days. An appropriate order follows.

DATED:

October

18,

2019

KEVIN MCNdLTY
United States District Judge

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