Petitioner is a native and citizen of the Dominican Republic who entered the United States in July 1989 and has remained in the country since that time as a lawful permanent resident. (ECF No. 1 at 5). During his time in this country, Petitioner has received convictions for multiple drug related offenses including convictions for possession of a controlled substance with intent to distribute in both 2002 and 2004. (Id. at 6). Based on this criminal history, immigration officials took Petitioner into custody on or about June 5, 2017, and have held him pursuant to 8 U.S.C. § 1226(c) since that date. (Id.).
Petitioner first appeared before the immigration courts on June 15, 2017. (Document 1 attached to ECF No. 6 at 1). On June 15, 2017, Petitioner requested and was granted an extension of time so that he could prepare his case. (Id. at 1-2). On July 19, 2017, Petitioner again requested an extension, and his hearing was continued to August 17, 2017. (Id. at 2). Petitioner thereafter requested another continuance, and his hearing was rescheduled for September 20, 2017. (Id.). On September 20, 2017, however, Petitioner filed a motion to substitute counsel, which was granted. (Id.). Petitioner apparently also both requested more time to prepare and filed a motion to terminate removal proceedings at that time. (Id.). The assigned immigration judge denied the motion to terminate in October 25, 2017, but thereafter granted Petitioner's request for more time and scheduled Petitioner's next hearing for December 7, 2017. (Id.). Petitioner thereafter requested and received another continuance through January 3, 2018. (Id.).
On January 3, 2018, Petitioner appeared for a hearing before an immigration judge and was ordered removed. (Id. at 2-3). Petitioner apparently filed no further requests for relief from removal. (Id.). On January 23, 2018, Petitioner filed an appeal to the Board of Immigration Appeals ("BIA"). (Id.). On May 23, 2018, the BIA dismissed Petitioner's appeal and affirmed his order of removal. (ECF No. 8). Petitioner then filed a petition for review with the Third Circuit Court of Appeals accompanied by a motion for a stay of removal. (Id.). On June 18, 2018, the Clerk of the Third Circuit entered an order granting Petitioner a temporary stay of removal pursuant to a standing order of the Court of Appeals to remain in effect until such time as a motions panel decided Petitioner's motion for a stay on the merits. (Third Circuit Docket No. 18-2345 at Document No. 3112959248). Briefing on Petitioner's stay motion was apparently completed on July 3, 2018, but the Third Circuit has yet to rule on the motion or vacate the temporary stay. (SeeThird Circuit Docket No. 18-2345 Docket Sheet). Petitioner is thus currently subject to a temporary stay of removal pursuant to the Third Circuit's standing order.
Under 28 U.S.C. § 2241(c), habeas relief may be extended to a prisoner only when he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A federal court has jurisdiction over such a petition if the petitioner is "in custody" and the custody is allegedly "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). As Petitioner is currently detained within this Court's jurisdiction, by a custodian within the Court's jurisdiction, and asserts that his continued detention violates due process, this Court has jurisdiction over his claims. Spencer v. Kemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95, 500 (1973); see also Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
In his petition, Petitioner contends that his ongoing detention pursuant to 8 U.S.C. § 1226(c)1 violates his right to Due Process as he has been held overlong without a bond hearing. Petitioner challenges his continued detention under § 1226(c) pending the conclusion of his removal proceedings. This Court recently summarized the legal basis for a challenge to detentionunder § 1226(c) in Dryden v. Green, No. 18-2686, 2018 WL 3062909 (D.N.J. June 21, 2018). As this Court explained in that matter,
[t]he Supreme Court first considered the propriety of prolonged detention pursuant to § 1226(c) in Demore v. Kim, 538 U.S. 510 (2003). Upon a review of the statute, the authority of Congress to detain aliens pending removal, and the usual time frame associated with detention under the statute, the Court determined in Demore that the statute was facially constitutional as "[d]etention during removal proceedings is a constitutionally permissible part of that process." Id. at 531. In reaching this conclusion, the Court noted that in most cases detention under the statute lasted only a month and a half and that even in cases where an appeal was taken to the Board of Immigration Appeals, detention pursuant to § 1226(c) lasted an average of four months, indicating that detention under the statute was often brief and had a defined beginning and end point in the form of the conclusion of removal proceedings. Id. at 529. Ultimately, as the Court found the statute constitutional, the Demore Court rejected Petitioner's challenge even though Petitioner had spent slightly longer than average in detention - a period of approximately six months. Id. at 530. Thus, after Demore it was clear that immigration detention under § 1226(c) was facially valid, and that detention for less than six months would not be sufficient to support an as applied challenge to detention under the statute.
In Diop v. ICE/Homeland Sec., 656 F.3d 221, 231-35 (3d Cir. 2011), however, the Third Circuit concluded that detention under § 1226(c) would become constitutionally suspect if it continued for a prolonged period of time well beyond the six months discussed in Demore. In that case, the Third Circuit explained that while mandatory detention without an individualized hearing for a brief period, such as that discussed in Demore, was constitutionally sound, excessively prolonged detention would be unreasonable and "when detention becomes unreasonable, the Due Process Clause demands a hearing, at which the Government bears the burden of proving that continued detention is necessary to fulfill the purposes of the detention statute." Id. at 233. Turning to the statute itself, the Third Circuit found that, in cases involving prolonged detention lasting several years, mandatory detention could become unreasonable and thus unconstitutional if that detention continued absent a hearing. The Court of Appeals, however, did "not believe that Congress intended to authorize prolonged, unreasonable detention without a bond hearing," and thus determined that § 1226(c) must be read to "contain[] an implicit limitation of reasonableness: the statute authorizes only mandatory detention thatis reasonable in length [and the statute] yields to the constitutional requirement that there be a further, individualized, inquiry into whether continued detention is necessary to carry out the statute's purpose" when this "implicit limitation" is exceeded. Id. at 235.
The Third Circuit thus avoided its constitutional concerns with prolonged detention under § 1226(c) by reading this limitation into the statutory text. Id. Based on this implicit limitation, the Diop panel held that § 1226(c) "authorizes detention for a reasonable amount of time, after which the authorities must make an individualized inquiry into whether detention is still necessary to fulfill the statute's purposes." 656 F.3d at 231. The determination of whether a given period of detention is reasonable is a fact specific inquiry "requiring an assessment of all of the circumstances of a given case" Id. at 234. Reasonableness in this context is "a function of whether [continued detention without bond] is necessary to fulfill the purpose of the statute," specifically protecting the public and ensuring that the petitioner attends his removal proceedings. Id.
The Third Circuit refined this approach to the statute in Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir. 2015). In Chavez-Alvarez, the Third Circuit reiterated that § 1226(c) should be read to contain an implicit reasonableness limitation, and that detention beyond the point of reasonableness absent a bond hearing would be unconstitutional. Id. at 475. While the Third Circuit had declined to adopt a bright line rule for determining reasonableness based solely on the passage of time in Diop, see 656 F.3d at 234; see also Carter v. Aviles, No. 13-3607, 2014 WL 348257, at *3 (D.N.J. Jan. 30, 2014), the Third Circuit did provide guidance on that point in Chavez-Alvarez. Specifically, the Third Circuit in Chavez-Alvarez held that, at least where the Government fails to show bad faith on the part of the petitioner, "beginning sometime after the six-month timeframe [upheld by the Supreme Court in Demore v. Kim, 538 U.S. 510, 532-33 (2003),] and certainly by the time [the petitioner] had been detained for one year, the burdens to [the petitioner's] liberties [will outweigh] any justification for using presumptions to detain him without bond to further the goals of the statute." 783 F.3d at 478. Thus, the Third Circuit
...
