MORRISON v. ELWOOD et al
Filing
25
MEMORANDUM OPINION and ORDER that the Clerk shall reopen this matter; Ordering that Petitioner's letters, Docket Entries Nos. 18 , 20 , 21 and 22 , are read jointly and construed as Petitioner's motion seeking reconsideration of th is Court's prior order docketed as Docket Entry No. 19 ; Ordering that Petitioner's motion is granted in form and denied in substance; Ordering the Clerk to terminate this matter and that this Court withdraws its jurisdiction over this matter, hence ripening it for appeal if such is desired. Signed by Judge Peter G. Sheridan on 1/18/2013. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
CORDELIO VALENTINO MORRISON, :
Petitioner,
:
:
v.
:
:
BRIAN ELWOOD et al.,
:
:
Respondents. :
:
Civil Action No. 12-4649 (PGS)
MEMORANDUM OPINION
AND ORDER
Sheridan, District Judge:
This matter comes before the Court upon Petitioner's filing
of four letters, see Docket Entries Nos. 18, 20, 21 and 22, and
it appearing that:
1.
Petitioner is a native and citizen of Costa Rica who, during
the period from 1989 to 2007, was present in the United
States and was convicted of: (a) four different controlled
substance-related offences; (b) an assault charge; (c) an
unlawful imprisonment charge; and (d) a vehicle-related
offense.
In addition, he was arrested on larceny charges
immediately prior to being taken into current immigration
enforcement custody.
2.
See Docket Entries Nos. 9 and 9-1.
Being a pre-removal-order alien detainee, then held pursuant
to Section 1226(c), Petitioner commenced the instant matter
challenging the Government's classification of him as a §
1226(c) detainee.1
See Docket Entry No. 1.
Petitioner,
therefore, sought habeas relief in the form of a hearing
before his immigration judge.
3.
See id.
Having carefully considered Petitioner's application and
Respondents' submissions, this Court: (a) concluded that the
Government erred in its classification of Petitioner as a
Section 1226(c) detainee; and (b) upon finding that
Petitioner should have been deemed a § 1226(a) detainee,
granted Petitioner habeas relief by directing Respondents to
ensure Petitioner's swift individualized bond hearing before
his immigration judge, where the burden would be on the
Government.
4.
See Docket Entries Nos. 13 and 14.
Respondents duly complied with this Court's order, and
Petitioner was provided with a proper bond hearing.
See
Docket Entry No. 16 (Respondents' letter informing this
Court that Petitioner's individualized bond hearing was held
on December 6, 2012, and release on bond was denied).
5.
Dissatisfied with the outcome of said bond hearing,
Petitioner filed his first letter conceding that he was
availed to a bond hearing but: (a) maintaining that the
immigration judge erred in finding that Petitioner's
1
Petitioner's position was based on the Government's
failure to take him into immigration enforcement custody
immediately upon his release from confinement underlying his
criminal convictions.
2
extensive criminal record warranted denial of release on
bond; and (b) asserting that the Government must have failed
to meet its burden (since Petitioner remained unconvinced by
the judicial decision denying him release on bond).
Docket Entry No. 17.
See
Petitioner, therefore, requested this
Court to: (a) annul the findings of his immigration judge;
(b) conduct Petitioner's bond hearing de novo; and (c) find
that Petitioner was neither a flight risk nor a danger to
society.
6.
See id.
The Court denied Petitioner's application, explaining as
follows:
This Court . . . has no mandate to second-guess a
substantive outcome of proceedings held by
Petitioner's immigration judge: the entities
endowed with the power of appellate review of
immigration judges are the Board of Immigration
Appeals and the United States Courts of Appeals.
This Court's power to entertain habeas
applications ensues solely from the narrowlytailored mandate of 28 U.S.C. § 2241, which -with respect to the claims raised by pre-removalorder alien detainee's -- allows relief limited to
a directive of a bond hearing. Accord Diop v.
ICE/Homeland Sec., 656 F.3d 221, (3d Cir. 2011).
While a district court itself may hold a bond
hearing (instead of directing the Government to
arrange for a bond hearing before an immigration
judge), such measure appears more appropriate
where there is evidence that the immigration judge
unnecessarily delays a bond hearing. See e,g.,
Flores-Powell v. Chadbourne, 677 F. Supp. 2d 455,
474-78 (D. Mass. 2010) (providing an extensive
discussion of various versions of such scenario
and examining relevant cases law). Paramount
here, once an immigration judge reached a decision
as to release -- or denial of release -- of an
alien detainee upon holding a proper
3
individualized bond hearing, a district court has
no appellate mandate to annul such decision.
Compare Chehazeh v. AG of the United States, 666
F.3d 118 (3d Cir. 2012) (no statutory provision
precluded habeas review of a Board of Immigration
Appeals' procedural decision to reopen a removal
proceeding).
Docket Entry No. 19, at 3 and n.2 (footnoted text
incorporated into the main text).
7.
In response, Petitioner submitted four letters at bar, which
this Court reads jointly and construes as Petitioner's
motion seeking reconsideration of the above-quoted Court's
order.
a.
In his first letter, Petitioner stated:
I wish to appeal against the Immigration
Judge Page, ruling on the grounds that he
violated my constitutional rights to a Fair
Hearing. I was granted a habeas Corpus by
District Judge Peter G. Sheridan. Judge
Sheridan ruled that I was not a threat to
society, and my classification was changed
from 1226C to 1226A, that I was granted a
Bond Hearing where the Government beared the
burden of proving why I shouldn't get a bond.
The Government failed to take on that burden,
and Judge Page took on that burden on him and
denied me a bond, on the grounds that I was a
threat to the society and a flight risk,
because Judge Page made be over turned On
October 3rd, 2012 Judge Page order me
deported. I request that order be overturned
and that I be released.
Docket Entry No. 18 (grammar, punctuation and
capitalization in original).
b.
Petitioner's second letter stated:
4
I would like to file this appeal on the
grounds of constitutional and civil rights
violations, and I would also like to appeal
any decision that Judge Page made against me
on the grounds that he showed Prejudice
against me. When I didn’t get a
constitutional fair bond hearing in his
courtroom on the basis that Judge Page showed
extreme prejudice, when he didn’t allow the
Prosecutor to bear the burden instead take
that burden upon himself and stated that I
was a treat to the society solely on the
grounds of one non-violent felony charge and
misdemeanor charges, and Judge page stated
that I was a flight risk solely on the
grounds that he had order me removed, even
though that case was on appeal and as a
result not a final disposition, Judge page
violated my constitutional rights and civil
rights and at the time that Judge Page made
the decision ordering me to be removed I was
wrongly classified, so in light of that I ask
that his decision be overturned. I ask for
any and every relief that this court can give
me in my quest for justice to right the wrong
that has been done to me as a result of being
incarcerated for over 9 months and held
without bond I was wrongly classified and
treated like a terrorist and denied a bond or
release, on the grounds of a non violent
felony and misdemeanor charges I request this
court to review my case in it whole and make
the right decision in the interest of
justice. . . . The district court has
reviewed my past record and granted my habeas
corpus petition and changed my classification
so that I am eligible for bond or release but
the Immigration Judge Page denied bond on the
grounds of my past record of one non-violent
felony charge and misdemeanor charges.
Docket Entry No. 20 (grammar, punctuation and
capitalization in original).
c.
In his third letter, Petitioner stated:
5
Hope your are in the best of health and
everything is fine with you and yours, the
nature for this brief letter is just to
clarify. This court’s possession and the
order that was made on the 18th day of
December, By the Honorable District Judge
Peter G. Sheridan. However, with that said
the Judge Order that the Docket Entry No. 17
is denied and terminated or in other words
this Habeas action is terminated or not. Or
is it just an Order of a new individualized
bond hearing.
Docket Entry No. 21 (grammar, punctuation and
capitalization in original).
d.
Petitioner's latest letter made the following request:
I am requesting copys of three final
dispositions and Immigration notice to
appear. That is attached to my habeas Corpus
petition.
Docket Entry No. 22, at 1 (grammar, punctuation and
capitalization in original).
This final letter was
accompanied by a fee waiver form utilized by the
Department of Justice.
8.
See id. at 2.
To the extent Petitioner is under the impression that this
Court's grant of habeas relief was a finding that Petitioner
was not a threat to society and/or not a flight risk, and/or
that Petitioner was entitled to release on bond, Petitioner
errs.
The habeas inquiry presented to this Court was
limited to, and only to, the issue of whether the
Government's failure to take Petitioner into immigration
enforcement custody immediately upon his release from
6
confinement underlying his criminal convictions rendered
Petitioner's classification as § 1226(c) detainee defective
(and, hence, the Government was incorrect in its position
that Petitioner was not entitled to a bond hearing).
Docket Entries 1, 13 and 14.
Resolving that particular
issue, this Court ruled in Petitioner's favor.
Entries Nos. 13 and 14.
See
See Docket
The Court's determination resulted
in Petitioner's reclassification into a § 1226(a) detainee
and, correspondingly, in Petitioner was allowed to have a
bond hearing. See id.
At no point, however, did this Court
rule that Petitioner was entitled to release on bond or that
he was not a danger to society, or that he did not present a
flight risk: all those issues were reserved for (and
resolved at) the bond hearing conducted by his immigration
judge.
9.
See id.
As this Court already explained to Petitioner, this Court
has no power of appellate review over the determinations
reached by immigration judges: that power is vested solely
in the Board of Immigration Appeals and federal circuit
courts, such as the United States Courts of Appeals, and the
United States Supreme Court.
Conceivably, Petitioner might
be able to seek relief from this Court (in the form of an
order directing a curative bond hearing) if Petitioner
establishes that Respondents arranged for a hearing before
7
an immigration judge who was so biased against Petitioner
that Petitioner's bond hearing was effectively a sham, and
the underlying habeas remedy Petitioner obtained from this
Court was rendered de facto meaningless by such sham
hearing.2
Here, however, Petitioner fail to assert facts
establishing bias on the part of his immigration judge.
10.
Within the workings of federal courts, 28 U.S.C. § 455(a)
governs the issue of judicial bias and provides that “any
justice, judge or magistrate [judge] of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.”
Section
455(a) requires judicial recusal “if a reasonable person,
knowing all the circumstances, would expect that the judge
would have actual knowledge” of his/her interest or bias in
a case.
Liljeberg v. Health Services Acquisition Corp., 486
U.S. 847, 860 (1988); In re Kensington Intern. Ltd., 368
2
Indeed, this way, it could be argued that Respondents did
not avail Petitioner to the very remedy ensuing from this Court's
grant of habeas writ. Cf. Akinola v. Weber, 2010 U.S. Dist. LEXIS
5780 (D.N.J. Jan. 26, 2010) (finding that a bond hearing by a
district court, rather than an immigration judge, was appropriate
where the immigration judge granted excessively numerous and
questionably justifiable continuances and adjournments to the
government); see also Casas-Castrillon v. Dep't of Homeland Sec.,
535 F.3d 942 (9th Cir. 2008). “[H]abeas corpus is, at its core,
an equitable remedy.” Schlup v. Delo, 513 U.S. 298, 319 (1995).
The Supreme Court observed that, historically, “common-law habeas
corpus was, above all, an adaptable remedy” in which the “court’s
role was most extensive in cases of pretrial and noncriminal
detention.” Boumediene v. Bush, 128 S. Ct. 2229, 2267 (2008).
8
F.3d 289, 301 (3d Cir. 2004).
In making this determination,
the court must consider how the facts would appear to a
“well-informed, thoughtful and objective observer, rather
than the hypersensitive, cynical, and suspicious person."
U.S. v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995); accord
Clemens v. United States District Court for the Central
District of California, 428 F.3d 1175, 1178 (9th Cir. 2005);
Matter of Mason, 916 F.2d 384, 386 (7th Cir. 1990).
Importantly here, “beliefs or opinions which merit recusal
must involve an extrajudicial factor,” Selkridge v. United
of Omaha Life Ins. Co., 360 F.3d 155, 167 (3d Cir. 2004)
(internal quotation marks and citation omitted), and the
Supreme Court has made it clear that “judicial rulings alone
almost never constitute a valid basis" for recusal.
v. United States, 510 U.S. 540, 555 (1994).
Liteky
The reason for
this rule is that judicial decisions “in and of themselves
can only in the rarest of circumstances evidence the degree
of favoritism or antagonism required” to prove bias.
Id.
Consequently, a judge's prior adverse rulings cannot verify
for the bias necessary for recusal under 28 U.S.C. § 455(a).
See, e.g., Byrne v. Nezhat, 261 F.3d 1075, 1103 (11th Cir.
2001); United States v. Pearson, 203 F.3d 1243, 1277 (10th
Cir. 2000); Leslie v. Grupo ICA, 198 F.3d 1152, 1160 (9th
Cir. 1999); United States v. Arena, 180 F.3d 380, 398 (2d
9
Cir. 1999); Matter of Hipp, Inc., 5 F.3d 109, 116 (5th Cir.
1993).
This is true even if the judge consistently made
adverse rulings against the party, see McCalden v.
California Library Assoc., 955 F.2d 1214, 1224 (9th Cir.
1990); United States v. Mobile Materials, Inc., 881 F.2d
866, 877 (10th Cir. 1989), because an adverse decision, even
if it is adverse on all issues raised, is not evidence of
bias, especially when it is supported by the law and facts.
See Crenshaw v. Hodgson, 24 F. App'x 619, 621 (7th Cir.
2001) (citing Gleason v. Welborn, 42 F.3d 1107, 1112 (7th
Cir. 1994); Byrne, 261 F.3d at 1103).
Finally, it should be
noted that, where issues of recusal arise, a judge “has a
duty to sit where not disqualified which is equally as
strong as the duty to not sit where disqualified.”
Laird v.
Tatum, 409 U.S. 824, 837 (1972); see also Clemens, 428 F.3d
at 1179; Sensley, 385 F.3d at 598-99; Nichols v. Alley, 71
F.3d 347, 351 (10th Cir. 1995).
11.
Here, Petitioner merely asserts that: (a) his immigration
judge previously ordered Petitioner removed; and (b) his
immigration judge has concluded that Petitioner's four
different controlled substance-related convictions, one
assault conviction, one unlawful imprisonment conviction and
one vehicle-related conviction rendered him a danger to
society, and that his pattern of aforesaid offenses and his
10
arrest immediately preceding his instant incarceration
rendered him a risk of flight.
These findings, wholly
judicial in nature and based on concrete evidence which
Petitioner does not dispute, fail to establish judicial bias
rendering this Court's grant of habeas relief meaningless.
While Petitioner might have preferred for his immigration
judge to allocate different weight or importance to said
facts, Petitioner's preference for a favorable outcome
cannot operate as evidence of judicial bias.3
Therefore,
all Petitioner's applications (seemingly seeking a curative
bond hearing by this Court) are without merit and, being
construed jointly as his motion for reconsideration of this
Court's prior determination, will be granted in form and
denied in substance.4
3
This Court is mindful of Petitioner's emotions and his
disappointment with the outcome of the bond hearing. However, a
litigant's emotions cannot qualify as the requisite extrajudicial
factor that could prompt a well-informed, thoughtful and
objective observer to conclude that a judge is biased against the
disappointed litigant. See Liteky, 510 U.S. at 555; Liljeberg,
486 U.S. at 860 (1988); Kensington, 368 F.3d at 301.
4
The Court of Appeals has held that a litigant’s motion
for reconsideration should be deemed “granted” when the court
(the decision of which the litigant is seeking a reconsideration
of) addresses the merits rather than the mere procedural
propriety or lack thereof - of that motion. See Pena-Ruiz v.
Solorzano, 2008 U.S. App. LEXIS 12436, at *2-3, n.1 (3d Cir.
2008). However, the very fact of the court's review does not
prevent the court performing such reconsideration analysis (of
the original application, as supplanted by the points raised in
the motion for reconsideration) from reaching a disposition
identical - either in its rationale or in its outcome, or in both
11
12.
Finally, being mindful of Petitioner's seemingly limited
command of English, as evinced by his above-quoted letters,
this Court cannot rule out the possibility that Petitioner
wished to appeal the findings of his immigration judge to
the Board of Immigration Appeals and/or the United States
Courts of Appeals.5
Therefore, without expressing any
opinion as to procedural propriety and/or substantive
validity of Petitioner's appellate challenges, if such were
intended, and acting solely out of abundance of caution, the
Court will direct the Clerk to serve Petitioner's latest
letter, Docket Entry No. 22, and this Memorandum Opinion and
Order upon: (a) the Board of Immigration Appeals; and (b)
the United States Courts of Appeals for the Third Circuit.
IT IS on this 18th day of January, 2013,
regards - to the court’s decision previously reached upon
examination of the original application. See id.
5
Petitioner's latest letter made a reference to
"Immigration notice to appear." Docket Entry No. 22, at 1. This
Court cannot rule out the possibility that Petitioner meant to
assert his interest in appealing the decision of his immigration
judge (since an administrative notice to appear for an
immigration proceeding is, seemingly, without any relation to the
issues at bar and, in any event, the Clerk of this Court has no
access to such document). The fact that Petitioner's latest
letter included an application to proceed without prepayment of
fee, see id. at 2, albeit in an administrative matter, seemingly
supports the conclusion that Petitioner might have contemplated
an appellate action.
12
ORDERED that the Clerk shall reopen this matter by making a
new and separate entry on the docket reading, "CIVIL CASE
REOPENED"; and it is further
ORDERED that Petitioner's letters, Docket Entries Nos. 18,
20, 21 and 22, are read jointly and construed as Petitioner's
motion seeking reconsideration of this Court's prior order
docketed as Docket Entry No. 19; and it is further
ORDERED that Petitioner's motion is granted in form and
denied in substance; and it is further
ORDERED that the Clerk shall terminate this matter by making
a new and separate entry on the docket reading, "CIVIL CASE
TERMINATED"; and it is further
ORDERED that this Court withdraws its jurisdiction over this
matter, hence ripening it for appeal if such is desired; and it
is further
ORDERED that no further filings shall be made by Petitioner
in this matter; and it is further
ORDERED that the Clerk shall serve this Memorandum Opinion
and Order, together with Petitioner's letter docketed in this
action as Docket Entry No. 22, upon the United States Court of
Appeals for the Third Circuit and, in addition, upon the Board of
Immigration Appeals, accompanying such service with a notation
reading, "SERVICE EXECUTED FOR INFORMATIONAL PURPOSES ONLY AND
SHALL NOT BE DEEMED A TRANSFER OF THIS MATTER.
13
PETITIONER'S
ATTACHED LETTER MIGHT BE INDICATIVE OF HIS INTEREST IN COMMENCING
EITHER ADMINISTRATIVE OR JUDICIAL APPELLATE PROCEEDINGS.
THIS
COURT EXPRESSES NO OPINION AS TO ANY PROCEDURAL OR SUBSTANTIVE
ASPECT OF SUCH APPELLATE APPLICATION"; and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion
and Order upon Respondents by means of electronic delivery and
upon Petitioner by regular U.S. mail.
January 18, 2013
s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.
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