QUESTEL v. GREEN et al
Filing
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MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 9/9/2016. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________
:
NICHOLAS QUESTEL,
:
:
Petitioner,
:
:
v.
:
:
CHARLES GREEN,
:
:
Respondent.
:
_________________________________:
Civil Action No. 16-1637 (MLC)
MEMORANDUM OPINION
COOPER, DISTRICT JUDGE
Petitioner Nicholas Questel (“Petitioner”) is currently being detained by the
Department of Homeland Security, Immigration and Customs Enforcement (“DHS/ICE”)
at the Essex County Correctional Facility in Newark, New Jersey, pending his removal
from the United States. On March 14, 2016, Petitioner filed the instant Petition for Writ
of Habeas Corpus under 28 U.S.C. § 2241, in which he challenges his detention pending
removal. (Dkt. 1.) 1 Following an order to answer (dkt. 2), the Government filed a
response to the Petition (dkt. 4). On May 26, 2016, Petitioner filed a reply. (Dkt. 6.)
1
The Court will cite to the documents filed on the Electronic Case Filing System (“ECF”) by
referring to the docket entry numbers by the designation of “dkt.” Pincites reference ECF
pagination.
For the reasons stated below, the Court will enter an Order to Show Cause for
Petitioner to explain why this petition should not be dismissed for failure to exhaust all
available remedies.
I.
BACKGROUND
Petitioner is a native and citizen of Trinidad and Tobago who entered this country
and was granted lawful permanent resident status in 1999. (Dkt. 1 at 5.) On April 5,
2010, Petitioner arrived in the United States via Newark Liberty International Airport on a
commercial flight from Trinidad and Tobago.
(Crim. No. 10-6052, dkt. 1 at 3.)
Petitioner was selected for a border search, and a subsequent pat down of Petitioner
revealed “an unusual bulge in the groin area.” (Id.) Two “brick-like” objects containing
cocaine were removed from Petitioner’s undergarments. (Id.) On April 5, 2010, DHS
paroled Petitioner into the country for ninety days, until July 5, 2010, to face federal
criminal prosecution. (Dkt. 4 at 3; dkt. 4-1.)
In June 2011, Petitioner was convicted of conspiracy to import cocaine pursuant to
21 U.S.C. § 963. (Crim. No. 10-709, dkt. 19.) For this conviction, Petitioner received a
sentence of “three years’ probation.” (Id.) On February 22, 2013, while Petitioner was
serving that probationary sentence, a Petition for Warrant or Summons for Offender Under
Supervision was filed against him in this District. (Id., dkt. 20.) The Petition for Warrant
alleged that Petitioner “violated the standard supervision condition which states that ‘[y]ou
shall not commit another federal, state, or local crime.’” (Id. at 1.) The Petition for
Warrant also alleged that, on January 15, 2013, Petitioner was arrested in Newburgh, New
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York, and charged with “forgery, criminal possession of stolen property, grand larceny,
attempted grand larceny, and credit card fraud.” (Id.)
On September 13, 2013, this Court signed a Second Amended Petition and Order
for Issuance of Arrest Warrant for Violation of Supervised Release for Petitioner. (Id.,
dkt. 21.) On February 26, 2015, a Judgment was entered against Petitioner for revocation
of probation or supervised release. (Id., dkt. 30.) Petitioner admitted his guilt to violating
his probation by committing another crime.
(Id. at 1.)
Consequently, Petitioner’s
previously imposed term of probation was revoked, and Petitioner was “committed to the
custody of the United States Bureau of Prisons to be imprisoned for 10 months[.]” (Id. at
2.) When he completed serving that imprisonment, he was detained by DHS/ICE to
address the immigration proceedings. (Dkt 4-3.)
On April 14, 2015, an Immigration Judge issued an Order denying Petitioner’s
request for a change in custody status, finding that Petitioner’s status was “arriving
alien/mandatory custody.” (Dkt. 4-4.) On September 27, 2015, Petitioner filed a Petition
for Writ of Coram Nobis with this Court, which remains pending. (Civ. No. 15-7555, dkt.
1.)2 Additionally, as of this writing, Petitioner is awaiting an Immigration hearing on the
merits of his removal. (Dkt. 4-6). On March 14, 2016, Petitioner filed this petition
challenging his present Immigration detention under 8 U.S.C. § 1225(b)(2)(A). (Dkt. 1.)
2
Oral argument on the Petition for Writ of Coram Nobis was held on October 19, 2015. An
evidentiary hearing was conducted on February 19, 2016, and August 1, 2016. The matter is
currently awaiting final briefing from the parties.
3
In this Petition, Petitioner argues that he is a pre-removal-order detainee subject to
8 U.S.C. § 1226(c), as opposed to § 1225(b). Thus, he continues, because it has been over
one year since he was detained by DHS/ICE, he is due a bond hearing to determine if his
continued detention is necessary. See Chavez-Alvarez v. Warden York Cty. Prison, 783
F.3d 469, 477 (3d Cir. 2015) (holding that, for pre-removal-order detainees, bond hearings
should be held after six months in detention to determine if a detainee is either a danger to
the community or a flight risk). In response, the Government argues that Petitioner’s
detention is governed by § 1225(b) because he was initially arrested while attempting to
enter the country, and Petitioner is thus not entitled to a bond hearing.
II.
DISCUSSION
A.
Legal Standard
Under 28 U.S.C. § 2241(c)(3), habeas relief “shall not extend to a prisoner unless .
. . [h]e is in custody in violation of the Constitution or laws or treaties of the United States.”
A federal court has subject matter jurisdiction under § 2241(c)(3) if two requirements are
satisfied: (1) the petitioner is “in custody,” and (2) the custody is alleged to be “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).
This Court has subject matter jurisdiction over this Petition under § 2241 because
Petitioner was detained within its jurisdiction, by a custodian within its jurisdiction, at the
time he filed his Petition, and because Petitioner asserts that his detention is not statutorily
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authorized. See Zadvydas v. Davis, 533 U.S. 678, 689 (2001); Spencer v. Lemna, 523
U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494–95, 500 (1973).
B.
Analysis
Federal law sets forth the authority of the Attorney General to detain aliens in
removal proceedings, both before and after issuance of a final order of removal.
Title 8 U.S.C. § 1226 governs the pre-removal-order detention of an alien. Section
1226(a) authorizes the Attorney General to arrest, and to detain or release, an alien, pending
a decision on whether the alien is to be removed from the United States, except as provided
in subsection (c). Section 1226(a) provides, in relevant part:
(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 . . . .
8 U.S.C. § 1226(a).
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Certain criminal aliens, however, are subject to mandatory detention pending the
outcome of removal proceedings, pursuant to 8 U.S.C. § 1226(c)(1), which provides in
relevant part:
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any
offense covered in section 1182(a)(2) of this 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[.]
8 U.S.C. § 1226(c)(1).
The Government, however, contends that Petitioner is instead being held as an
arriving alien pursuant to 8 U.S.C. § 1225(b)(2)(A). Courts in this district have previously
observed that a lawful permanent resident returning from abroad is “presumptively entitled
to retain that status upon reentry unless he falls into one of six subsections, in which case
he is stripped of his . . . status [and] becomes an alien seeking admission as if he were
entering for the first time.” Mejia v. Ashcroft, 360 F.Supp.2d 647, 651 (D.N.J. 2005)
(quotations omitted). One of those six subsections explicitly states that a returning alien
with prior convictions for controlled-substance offenses falls into the exception and is
therefore treated as an applicant for admission upon his attempt at reentry. See 8 U.S.C.
§ 1101(a)(13)(C); 8 U.S.C. § 1182(a)(2)(A)(i)(II).
This Court agrees with the Government that Petitioner’s detention is pursuant to §
1225(b)(2)(A). As Petitioner was not admitted to the United States on April 5, 2010, but
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merely paroled into the country for ninety days to face federal criminal prosecution (Dkt.
4 at 3; dkt. 4-1), he is not deemed to have entered the United States for immigration
purposes. See 8 U.S.C. § 1182(d)(5)(A). Petitioner is subject to the “entry fiction” as he
was detained at the border attempting to enter the country. See Heng Meng Lin v.
Ashcroft, 247 F.Supp.2d 679, 688 n.4 (E.D. Pa. 2003) (“The ‘entry fiction’ doctrine treats
an excludable alien as legally detained at the border despite his physical presence in the
country.”); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953). This
Court thus finds that Petitioner’s detention is controlled by § 1225(b)(2)(A), as an applicant
for admission, and not § 1226(c), which applies to those who have entered and been
admitted to the country for immigration purposes prior to being taken into custody. See
Sheba v. Green, No. 16-230, 2016 WL 3648000, at *2 (D.N.J. July 7, 2016).
All habeas petitioners, including immigration detainees seeking review of their
detention under § 1225(b)(2)(A), must first exhaust all administrative remedies before
seeking a writ of habeas corpus from this Court. Okonkwo v. I.N.S., 69 Fed. App’x 57,
59-60 (3d Cir. 2003); Yi v. Maugans, 24 F.3d 500, 503-04 (3d Cir. 1994). The failure to
exhaust remedies deprives a petitioner of the ability to receive habeas corpus relief in
federal court. Okonkwo, 69 Fed. App’x at 59-60; Yi, 24 F.3d at 503-04.
Section 1225(b)(2)(A) does not explicitly provide for a bond hearing for an alien
detained under that section. But other relief is available for the detainee if the Department
of Homeland Security determines, “on a case-by-case basis,” that “urgent humanitarian
reasons or significant public benefit” warrants paroling that detainee into the United States.
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See 8 U.S.C. § 1182(d)(5)(A). “[S]uch parole,” the statute notes, “shall not be regarded
as an admission of the alien and when the purposes of such parole . . . have been served the
alien shall forthwith return or be returned to the custody from which he was paroled and
thereafter his case shall continue to be dealt with in the same manner as that of any other
applicant for admission to the United States.” Id.; see also Sheba, 2016 WL 3648000, at
*2.
To exhaust his available remedies, an alien detained pursuant to § 1225(b)(2)(A)
must seek parole under § 1182(d)(5)(A) by requesting such relief from the Government.
Okonkwo, 69 F. App’x at 59-60; Sheba, 2016 WL 3648000, at *2-3; Bernard v. Green,
No. 15-6462, 2016 WL 2889165, at *3 (D.N.J. May 17, 2016).
Petitioner asserts that he “has exhausted all and every administrative remedies to
the extent required by law.” (Dkt. 1 at 3.) Petitioner also states that he “is currently
seeking all waivers, which could take some time.” (Dkt. 6 at 6.) The Government,
however, contends that Petitioner has not requested parole, and, therefore, that he has not
exhausted his administrative remedies before filing this habeas petition. (Dkt. 4 at 16.)
It is unclear from the filings what actions, if any, Petitioner has taken to exhaust his
remedies. Petitioner’s initial brief—that he “has exhausted” his remedies—and his reply
brief to the Government—that he “is currently seeking all waivers” (presumably Petitioner
means under 8 § 1182(d)(5)(A))—are seemingly inconsistent.
By contrast, the
Government represents unambiguously that Petitioner has not sought parole under §
1182(d)(5)(A).
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Petitioner has not provided this Court with any documentation or other
representation of what remedies he has sought, when he sought them, and what the status
of those applications for relief may be. On the record presented, the Court is unable to
determine whether Petitioner has in fact exhausted his remedies.
The Court will grant Petitioner leave to supplement or amend his filings to explain
why this Court should not dismiss his Petition for Writ of Habeas Corpus for failure to
exhaust all available remedies. In so doing, Petitioner shall identify what relief he has
already applied for, when those applications were made, and what the result was, or the
current status is, of these applications for relief. Petitioner should also provide any
documentation that supports his position.
III.
CONCLUSION
For the reasons set forth above, this Court asks Petitioner to explain why his Petition
for Writ of Habeas Corpus should not be dismissed for failure to exhaust all available
administrative remedies. An appropriate Order to Show Cause follows.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: September 9, 2016
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