Opinion
Civil Action No. 18-10274 (MCA)
08-01-2019
JASON A. WRIGHT, Petitioner, v. CHARLES GREEN, Respondent.
MEMORANDUM AND ORDER
This matter having come before the Court on Petitioner's submission of a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. It appearing that:
Mr. Wright has been detained by Immigration and Customs Enforcement since July 27, 2017. Civil Action No. 18-2539(MCA), ECF No. 1. On February 20, 2018, Mr. Wright filed a habeas petition before this Court seeking release from detention. Id.
On May 15, 2018, this Court granted Mr. Wright's habeas petition and ordered an Immigration Judge to provide Mr. Wright with an individualized bond hearing, pursuant to 28 U.S.C. § 1226(a). ECF No. 5. The Court relied on the Government's representation that Mr. Wright was detained pursuant to 1226(a). Id.
Section 1226(a) authorizes the arrest, detention, and release of aliens on bond pending a decision on whether the alien is to be removed from the United States, except as provided in § 1226(c). See 8 U.S.C. § 1226(a). A Petitioner detained pursuant to § 1226(a) is entitled to have the initial custody determination reviewed by an Immigration Judge. See 8 C.F.R. § 1003.19(a) ("Custody and bond determinations made by the service pursuant to 8 CFR part 1236 may be reviewed by an Immigration Judge pursuant to 8 CFR part 1236(b)[.]")
In accordance with the Court's May 15, 2018 Order, Respondent provided the Executive Office for Immigration Review ("EOIR") with the Order so that EOIR could arrange for an individualized bond hearing before an Immigration Judge. Thereafter, an individualized bond hearing was scheduled before Immigration Judge Mirlande Tadal for May 24, 2018. At that time, Judge Tadal determined that Mr. Wright should actually be detained pursuant to 1226(c), because he was convicted on November 1, 2017 for heroin distribution, N.J.S. 2C:35-5(a)(1). Exhibit A (May 24, 2018 Order). As a result of the 1226(c) custody determination, Judge Tadal did not provide an individualized bond hearing and instead ordered Mr. Wright detained in accordance with 1226(c), which requires mandatory detention for qualifying aggravated felonies including Mr. Wright's aggravated felony for heroin distribution.
"Section 1226(c), an exception to § 1226(a), mandates detention of specified criminal aliens during removal proceedings, provided detention does not continue for a prolonged period of time. See 8 U.S.C. § 1226(c); Diop v. ICE/Homeland Sec., 656 F.3d at 232 ("At a certain point, continued detention becomes unreasonable and the Executive Branch's implementation of § 1226(c) becomes unconstitutional unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law's purposes of preventing flight and dangers to the community"). Third Circuit precedent places the burden of proof on the government in bond hearings held pursuant to § 1226(c), whereas in bond hearings under § 1226(a) the burden remains on the detainee at all times. See Borbot v. Warden Hudson County Correctional Facility, 906 F.3d 274, 279 (3d Cir. 2018).
Mr. Wright then filed the instant habeas petition on June 7, 2018, again seeking release from detention. Civil No. 18-10274(MCA), ECF No. 1.
Meanwhile, on July 16, 2018, Judge Tadal ordered Mr. Wright removed to Jamaica. Exhibit B (Jul. 16, 2018 Order). Mr. Wright appealed the order of removal on August 3, 2018, Exhibit C (Aug. 3, 2018 appeal). At the time Respondent submitted its Answer, the appeal was pending before the Board of Immigration Appeals ("BIA").
At the time Respondent submitted its Answer, Petitioner's appeal before the BIA was still pending. It appears that Petitioner appeal was denied, and, on January 18, 2019, Petitioner filed a petition for review before the Third Circuit. See PACER No. 19-1186 (3d Cir.). The Third Circuit granted Petitioner a temporary stay on the same date. See id. The appeal remains pending. As such, it appears that Petitioner remains detained pursuant to § 1226. See Leslie v. Att'y Gen., 678 F.3d 265, 268-270 (3d Cir. 2012.)
In the Answer, Respondent asserts that Mr. Wright is properly detained under 1226(c)—and is thus subject to mandatory detention. Nevertheless, Respondent scheduled an individualized bond hearing before Judge Tadal on September 19, 2018, in accordance with the Court's directive that Mr. Wright receive an individualized bond hearing.
By letter dated October 3, 2018, Respondent represented to the Court that Petitioner appeared before an immigration judge on October 3, 2018, for an individualized hearing, and his request for a change in custody status was denied by the immigration judge. See ECF No. 8.
Respondent does not indicate whether the bond hearing was conducted pursuant to the standard for hearings under § 1226(a) or the standard for hearings under §1226(c).
Here, it appears that Petitioner has been provided an individualized bond hearing, which is the only relief the Court can provide to him with respect to detention under 8 U.S.C. § 1226. As such, the Court will dismiss the Petition without prejudice to Petitioner's filing of a new petition if his detention violates due process.
Petitioner has not responded to Respondent's October 3, 2018 letter or otherwise submitted a reply, and, thus, has not disputed that he received an individualized bond hearing or asserted that he received anything less than a bona fide hearing. --------
IT IS THEREFORE, on this 1 day of August, 2019,
ORDERED that the Petition is dismissed WITHOUT PREJUDICE as Petitioner has been provided an individualized bond hearing before an immigration judge; and it is further
ORDERED that the Clerk of the Court shall serve this Order on Petitioner by regular mail and CLOSE this case accordingly.
/s/_________
Madeline Cox Arleo, District Judge
United States District Court