DILONE v. SHANAHAN et al

Filing 12

OPINION filed. Signed by Judge Michael A. Shipp on 10/11/2013. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LUIS DILONE,
Civil Action No. 12-7894 (MAS)
Petitioner,
OPINION

v.

CHRISTOPHER SHANAHAN, et al.,
Respondents.

APPEARANCES:
PERHAM MAKABI, ESQ.
125-10 Queens Blvd., Suite 6
Kew Gardens, New York 11415
Counsel for Petitioner
KRISTIN LYNN VASSALLO, AUSA
OFFICE OF THE U.S. ATTORNEY
970 Broad Street, Suite 700
Newark, New Jersey 07102
Counsel for Respondents
SHIPP, District Judge
Petitioner Luis Dilone ("Petitioner"), an immigration detainee presently confined at the
Monmouth County Correctional Facility in Freehold, New Jersey, has submitted a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241, 1 challenging his mandatory detention during
his immigration removal proceedings.
1

The sole proper respondent is the Warden or

Section 2241 provides in relevant part:

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the
district courts and any circuit judge within their respective jurisdictions.
(c) The writ of habeas corpus shall not extend to a prisoner unless ... (3) He is in custody
in violation of the Constitution or laws or treaties of the United States ....

Administrator at the Monmouth County Correctional Facility, where Petitioner is in custody. 2
Because it appears from a review of the parties' submissions that Petitioner is not entitled to the
relief he seeks at this time, the Court will deny the petition without prejudice.

I. BACKGROUND
Petitioner Luis Dilone is a native and citizen of the Dominican Republic, who was
admitted to the United States, on June 8, 1992, as a lawful permanent resident alien. (Docket
No. 1, Petition,

'If

8.) On May 25, 2012, the U.S. Department of Homeland Security ("DHS"),

Immigration and Customs Enforcement ("ICE") served Petitioner with a Notice to Appear for
Removal Proceedings. (!d.,

'If

9.) The Notice charged that Petitioner was subject to removal

from the United States, pursuant to the Immigration and Nationality Act ("INA") §
237(a)(2)(B)(i), based on Petitioner's August 22, 2003 judgment of conviction entered in the
United States District Court for the Southern District of New York for the criminal offense of
Conspiracy to Distribute and Possess with the Intent to Distribute Heroin, in violation of 21
U.S.C. § 846.

(Dkt. # 1-3, Pet., Ex. 1.)

Petitioner had been sentenced to twenty months

imprisonment on his August 2003 criminal conviction. (Dkt. ## 7-2, 7-3, Declaration of Amy
Patrick, '1[5, Ex. A.)
Pursuant to the Notice to Appear for Removal Proceedings, Petitioner was taken into
custody and detained by the ICE on May 25, 2012. (Dkt. # 7-2, '1[6.) Petitioner was placed in

2

Petitioner has named various remote federal officials as respondents. The only proper
respondent to a habeas petition challenging current confinement is the warden of the facility
where the prisoner is being held, namely, Warden Brian Elwood. Accordingly, the other named
respondents shall be dismissed from this action with prejudice. See Rums.feld v. Padilla, 542
U.S. 426 (2004); Yi v. Maugans, 24 F.3d 500 (3d Cir. 1994).
2

removal proceedings on May 30, 2012.

On July 26, 2012, Petitioner requested supervised

release on bond through retained counsel. This request was denied by Acting Field Officer
Director Raymond Simonse because Petitioner was subject to mandatory detention under 8
U.S.C. § 1226(c). (ld.,

~~

7, 8, 11, Ex. G.) On October 24, 2012, Petitioner appeared before the

Immigration Judge for a master calendar hearing and admitted the allegations in the Notice to
Appear, conceding the charges of removability. However, petitioner filed an application for
relief from removal, and the Immigration Judge adjourned the hearing to allow Petitioner time to
file supporting documents. (Id.,

~

12, Ex. H.) On December 20, 2012, Petitioner appeared for a

master calendar hearing with his attorney, and the Immigration Judge adjourned the case and
scheduled a merits hearing for March 21, 2013.

(!d.,~

13, Ex. I.)

On December 28, 2012, Petitioner filed this application for habeas relief under 28 U.S.C.
§ 2241, challenging his detention pending removal proceedings. (Dkt. # 1.) Petitioner contends
that he is not subject to mandatory detention without a bond hearing under 8 U.S.C. § 1226(c),
because he was not taken into ICE custody "when released" from custody for a removable
offense. As noted, Petitioner alleges that he was taken into ICE custody on May 25, 2012, eight
years after he was released from criminal custody on the removable offense. (ld.

~~

9, 12, 13.)

On February 22, 2013, the Government filed an answer to the habeas petition. (Dkt. # 7.)
On March 25, 2013, counsel for Petitioner wrote to this Court informing that Petitioner's
merits hearing regarding his removal proceedings and application for relief from removal was
rescheduled for May 28, 2013. (Dkt. # 9.)
On April 23, 2013, the Government wrote to the Court regarding the then-newly issued
decision by the United States Court of Appeals for the Third Circuit, on April22, 2013, rejecting
3

Petitioner's argument that mandatory detention under 8 U.S.C. § 1226(c) did not apply when
there is a gap between release from criminal custody and arrest by immigration authorities.
Sylvain v. Attorney General of US., 714 F.3d 150 (3d Cir. 2013). (Dkt. # 11.)
II. RELEVANT STATUTES
Federal law sets forth the authority of the Attorney General to detain aliens in removal
proceedings. Title 8 U.S.C. § 1226(a) provides the Attorney General with the authority to arrest,
detain, and release an alien during the pre-removal-order period when the decision as to whether
the alien will be removed from the United States is pending. The statute provides,
(a) Arrest, detention, and release
On a warrant issued by the Attorney General, an alien may be arrested and detained
pending a decision on whether the alien is to be removed from the United States. Except
as provided in subsection (c) of this section and pending such decision, the Attorney
General( 1) may continue to detain the arrested alien; and
(2) may release the alien on(A) bond of at least $1,500 with security approved by, and containing
conditions prescribed by, the Attorney General; or
(B) conditional parole; but
(3) may not provide the alien with work authorization (including an "employment
authorized" endorsement or other appropriate work permit), unless the alien is
lawfully admitted for permanent residence or otherwise would (without regard to
removal proceedings) be provided such authorization.
(b) Revocation of bond or parole
The Attorney General at any time may revoke a bond or parole authorized under
subsection (a) of this section, rearrest the alien under the original warrant, and detain the
alien.
8 U.S.C. § 1226 (emphasis added.)

4

Certain criminal aliens, however, are subject to mandatory detention pending the
outcome of removal proceedings, pursuant to 8 U.S.C. § 1226(c)(l)(B), which provides in
relevant part that:
The Attorney General shall take into custody any alien who(A) is inadmissible by reason of having committed any offense covered m section
1182(a)(2) ofthis title,
(B) is deportable by reason of having committed any offense covered in Section
1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, ...
when the alien is released, without regard to whether the alien is released on parole,
supervised release, or probation, and without regard to whether the alien may be arrested
or imprisoned again for the same offense.
8 U.S.C. § 1226(c)(l)(B)(emphasis added). Section 1226(c)(2) permits release of criminal aliens
only under very limited circumstances not relevant here.
In short, detention under § 1226(a) is discretionary and permits release on bond, while
detention under § 1226(c) is mandatory.
III. ANALYSIS
Petitioner challenges his detention pursuant to pre-removal proceedings under 8 U.S.C. §
1226(c) because he was not taken into ICE custody immediately upon completion of his criminal
sentence for a removable offense.
As set forth above, an alien is subject to mandatory detention and subsequently removal
or deportation from the United States when he/she:
... is deportable by reason of having committed any offense covered in section
1227(a)(2)(A)(iii), (B), (C), or (D) of this title ... when the alien is released, without
regard to whether the alien is released on parole, supervised release, or probation, and
without regard to whether the alien may be arrested or imprisoned again for the same
offense.
5

Apprehension and Detention ofAliens, 8 U.S.C. § 1226(c)(l)(B).
The Third Circuit Court of Appeals recently resolved a challenge such as Petitioner raises
here by ruling that even if 8 U.S.C. § 1226(c)(1) called for detention when an alien was released,
nothing in the statute suggested that the immigration officials would lose their authority to
effectuate the removal proceeding and mandatorily detain the alien if detention was delayed. See

Sylvain, 714 F.3d at 157.
Petitioner's challenge here, based on the phrase "when the alien is released" in § 1226(c),
fails because the phrase does not mean that detention must be immediate. See Sylvain, 714 F.3d
at 157 (holding that "even if 'when' implies something less than four years, nothing in the statute
suggests that immigration officials lose authority if they delay.").
Thus, the Sylvain ruling means that an alien raising a claim such as the claim presented
here is not entitled to habeas relief simply because immigration officials delayed in taking
him/her into custody. See id. In this case, ICE officials did not lose their authority to effectuate
mandatory detention of Petitioner in conjunction with removal proceedings simply due to a lapse
in time between Petitioner's release from non-ICE custody and his current mandatory detention.
Accordingly, Petitioner's challenge here is without merit and the Petition must be denied.
Finally, the Court observes that Petitioner does not assert a claim of unreasonably
prolonged detention in violation of the Due Process Clause under Diop v. ICE/Homeland Sec.,
656 F.3d 221

(3d Cir. 2011) (finding that Diop's nearly three year detention was

unconstitutionally unreasonable and, therefore, a violation of due process). In Diop, the Third
Circuit concluded that the mandatory detention statute, § 1226(c), implicitly authorizes detention
for a reasonable amount of time, after which the authorities must make an individualized inquiry
6

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. 656
F.3d at 231. Specifically, the Third Circuit found that the 35-month mandatory detention of
Diop was unreasonable partly because the immigration judge had committed "numerous errors"
that caused the BIA to remand the case three times. !d. at 224-26, 234-35.
Nevertheless, the Third Circuit has not set a "universal point" when mandatory detention
under§ 1226(c) is unreasonable. See Leslie v. Attorney General, 678 F.3d 265, 270-71 (3d Cir.
2012) (ultimately finding that Leslie's four-year detention under § 1226(c) was unreasonable
because it had been prolonged by the alien's successful appeals, and petitioner should not be
punished by continued detention for having pursued these "bona fide" legal remedies).
In this case, Petitioner has been detained for one year during his removal proceedings.
His merit hearing on removal was scheduled for May 28, 2013. This one-year time frame is far
short of the lengthy detention period of 35 months found to be unreasonable by the Third Circuit
in Diop, and the four-year period of detention found to be unreasonable in Leslie. Accordingly,
the Court dismisses this petition without prejudice to Petitioner bringing a new and separate
action under either Diop or Zadvydas v. Davis, 533 U.S. 678 (2001) (holding that post-removalperiod detention contains implicit reasonableness limitation and that the presumptive limit for
post-removal-period detention is six months) in the event the facts and circumstances of
Petitioner's custody and detention by the ICE should change in the future. 3

3

The Court further notes that should a final order of removal be entered against Petitioner, the
basis of his detention changes, and Petitioner would be subject to mandatory detention under 8
U.S.C. § 1231(a)(2), for a 90-day removal period. After the 90-day removal period expires, the
7

IV. CONCLUSION
For the foregoing reasons, the Court denies without prejudice Petitioner's application for
habeas relief pursuant to 28 U.S.C. § 2241. An appropriate Order follows.

MICHAEL A. SHIPP ·
United States District Judge
Dated:

Government may continue to detain Petitioner pending removal or release Petitioner under
supervision. 8 U.S.C. § 1231(a)(6). However, this post-removal-period detention provision
contains an implicit reasonableness limitation, which the Supreme Court has held to be a
presumptive limit of six months. Zadvydas v. Davis, 533 U.S. 678 (2001 ).

8