Once the Attorney General exercises his or her discretion by deciding whether the alien should be detained or released on bond, the alien may seek review of that decision by an immigration judge, as Kumar did in this case. 8 C.F.R. § 236.1(d); see Cuello, 2010 WL 4226688 at *5; Pisciotta v. Ashcroft, 311 F. Supp. 2d 445, 449 (D.N.J. 2004); Zavala v. Ridge, 310 F. Supp. 2d 1071, 1074 (N.D. Cal. 2004). Critically, the Attorney General's exercise of his or her discretion in making a bond determination regarding aliens detained pursuant to § 1226(a) is not reviewable by this Court. 8 U.S.C. § 1226(e).
Even if the Court had jurisdiction to review the claims, Petitioner's argument on these issues is suspect. Petitioner relies on two cases to support his claim that the automatic stay provision violates Due Process and that the BIA acted improperly in granting a stay, Ashley v. Ridge, 288 F. Supp. 2d 662 (D.N.J. 2003), and Zavala v. Ridge, 310 F. Supp. 2d 1071 (N.D. Cal. 2004). Even were these cases binding authority, neither would provide Petitioner the relief he seeks.
Petitioner's reliance on Zavala v. Ridge, 310 F. Supp. 2d 1071, 1075 (N.D. Cal. 2004) is misplaced. The ruling in Zavala was predicated upon an indefinite, mandatory stay.
While there are a few individuals who have been detained for more than 180 days, including Mr. Lyon (detained October 2013 and April 2015) and Ms. Neria-Garcia (detained between June 2014 and October 2015), Plaintiffs' expert notes that in general, “[m]any detainees are held for very short periods of time, while a few are held for very long periods of time.”Id. Plaintiffs do cite Zavala v. Ridge , 310 F.Supp.2d 1071 (N.D.Cal.2004) ; however, this case was a challenge to a regulation which automatically stayed the IJ's decision to grant bond. Id. at 1075.
Once the Attorney General exercises his discretion as to whether the alien who be detained or released, the "alien may seek review of this decision by an Immigration Judge." Pisciotta v. Ashcroft, 311 F. Supp. 2d 445, 449 (D.N.J. 2004); Zavala v. Ridge, 310 F. Supp. 2d 1071, 1074 (N.D. Cal. 2004). Therefore, if Petitioner is held under § 1226(a), he is entitled to a proper custody determination assessing his dangerousness and risk of flight and review of that determination by an IJ.
The cases upon which Hussain relies to support his argument that the regulation violates due process addressed the previous regulation under which the duration of the automatic stay was indefinite. See, e.g., Zavala v. Ridge, 310 F. Supp.2d 1071, 1075 (N.D. Cal. 2004). The current regulation provides that the automatic stay will lapse 90 days after the filing of the notice of appeal.
McAlpine's claim falls squarely within the habeas jurisdiction of this court, as established by 28 U.S.C. § 2241(c)(3). See Pisciotta, 311 F.Supp.2d at 453-54 (finding habeas jurisdiction where petitioner was contesting the constitutionality of 8 C.F.R. § 1003.19(i)(2)); Zavala v. Ridge, 310 F.Supp. 2d 1071, 1074-80 (N.D.Cal. 2004) (finding habeas jurisdiction by necessary implication where the court proceeded to the merits of petitioner's constitutional challenge to 8 C.F.R. § 1003.19(i)(2)). Further, the court's habeas jurisdiction over this case is not affected by 8 U.S.C. § 1226(e), which prohibits judicial "review" of a "discretionary judgment" or "decision" regarding the detention of aliens.