Tuser E. v. Rodriguez

370 F.Supp.3d 435

TUSER E., Petitioner,

v.Orlando RODRIGUEZ, Respondent.

Civil Action No. 18-4801 (JMV)

United States District Court, D. New Jersey.

Signed February 25, 2019

Tuser Emran, Elizabeth, NJ, pro se.

Caroline A. Sadlowski, United States Attorney's Office, Newark, NJ, David Kim, Washington, DC, for Respondent.

VAZQUEZ, District Judge:

I. INTRODUCTION

Petitioner Tuser E.¹ has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his prolonged immigration detention. (ECF No. 1.) For the reasons stated herein, the Court will grant his petition and order the immigration court to hold a bond hearing.

II. BACKGROUND

Petitioner is a native and citizen of Bangladesh. (See ECF No. 7-1 at PageID: 59.) Petitioner was previously admitted to the United States as a non-immigrant student on September 6, 2013.² Petitioner appears to have continuously remained in the United States from that time until July 9, 2017, when he left this country. (See id. ) It is clear that Petitioner's legal authorization to remain in the United States was revoked, lapsed, or otherwise expired on or before July 9, 2017.³ (Id. ) It is also clear that Petitioner's authorization was never thereafter reinstated, i.e. , at no point after July 9, 2017 was Petitioner authorized to enter or remain in the United States.

On July 25, 2017, approximately two weeks after Petitioner departed from this country on July 9, 2017, Petitioner returned to the United States on a flight which disembarked at John F. Kennedy International Airport ("JFK"). (See ECF No. 6 at PageID: 22.) Upon his arrival at JFK, Petitioner applied for re-admission to the United States. (Id. ) Instead of being admitted, Petitioner was taken into custody by the United States Department of Homeland Security ("DHS"). Petitioner has been detained at the Elizabeth Detention Center in Elizabeth, New Jersey ever since.

On July 31, 2017, DHS served Petitioner with a Notice to Appear informing him, among other things, that he was facing removal from the United States pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an immigrant who was not in possession of a valid entry document at the time he applied for admission on July 25, 2017. (Id. ) Between August 2017 and May 2018, Petitioner attended numerous hearings in immigration court concerning his removability. (See, generally , Burgus Decl., ECF No. 6 at PageID: 29-31.) At an October 12, 2017 hearing, Petitioner filed an application seeking relief from removal. (Id. at ¶ 8.) The immigration court originally scheduled a hearing on that application for November 9, 2017. (Id. at ¶¶ 8-18.) That hearing was adjourned and carried numerous times at that request of DHS, who consistently advised the immigration court that it needed additional time to obtain Petitioner's records and complete its investigation. (Id. ) The immigration court also adjourned and continued the hearing several times sua sponte . (Id. ) All told, the immigration court and DHS were responsible for five months of hearing adjournments between November 9, 2017 and May 22, 2018, when the immigration court completed all necessary proceedings related to Petitioner's application for relief from removal. (Id. )

Thereafter, on or about July 9, 2018, the immigration court ordered Petitioner removed to Bangladesh. (See Aug. 23, 2018 Medina Decl. ¶ 7, ECF No. 6 at PageID: 27.) Petitioner has appended a portion of the Immigration Judge's ("IJ's") written decision to his reply. (ECF No. 7-1 at PageID: 58-59.) The appended partial copy of the IJ's decision indicates that during an October 3, 2017 hearing, Petitioner acknowledged that he did not have a valid entry document when he applied for admission to the United States on July 25, 2017. (Id. at PageID: 59.) In other words, Petitioner conceded his removability to the immigration court. (Id. ) In addition, the IJ found that Petitioner was not entitled to asylum or withholding of removal under the Immigration and Nationality Act, nor was he entitled to protection under the Convention Against Torture. (Id. )

Petitioner appealed the IJ's rulings to the Board of Immigration Appeals ("BIA") on August 6, 2018. (See Medina Decl. ¶ 8, ECF No. 6 at PageID: 27.) Petitioner's appeal to the BIA remains pending. (See id. )

On the same day Petitioner filed his BIA appeal, i.e. , August 6, 2018, DHS notified Petitioner that he was being considered for release on parole. (ECF No. 7-2 at PageID: 124.) On or about August 31, 2018, DHS informed Petitioner that he would not be paroled. (Id. at PageID: 128.)

Petitioner filed his habeas corpus petition on or about March 28, 2018 (hereinafter, the " § 2241 Petition"). (ECF No. 1.) Respondent (hereinafter the "Government") filed its answer to the § 2241 Petition on August 23, 2018. (ECF No. 6.) Petitioner filed a reply on or about September 19, 2018. (ECF No. 7.)

III. LEGAL STANDARD

Habeas relief may be extended to an immigration detainee who "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) ; see also Maleng v. Cook , 490 U.S. 488, 490, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). The Court has jurisdiction in this habeas matter because: (i) Petitioner is currently detained within this Court's jurisdiction by a custodian within its jurisdiction; and (ii) Petitioner, by way of his § 2241 Petition, claims that his continued detention violates due process. See Spencer v. Kemna , 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) ; Braden v. 30th Judicial Circuit Court , 410 U.S. 484, 494-95, 500, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) ; see also Zadvydas v. Davis , 533 U.S. 678, 699, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).

IV. ANALYSIS

A. The Parties' Habeas Arguments

Petitioner contends that his ongoing detention violates his right to due process. (See , generally , ECF No. 7.) Petitioner requests that the Court order a bond hearing in which DHS bears the burden of demonstrating that Petitioner's continued detention is appropriate. (Id. at PageID: 44 (citing Diop v. ICE/Homeland Security , 656 F.3d 221, 232 (3d Cir. 2011) ).) The Government argues that Petitioner's § 2241 Petition should be denied because DHS "has lawfully detained Petitioner under 8 U.S.C. § 1225(b)(2), which dictates that if an arriving alien seeking admission is determined not to be clearly and beyond a doubt entitled to be admitted, the alien [must] be detained throughout the period in which he pursues his claim for relief from removal." (ECF No. 6 at PageID: 14 (citing Jennings v. Rodriguez , ––– U.S. ––––, 138 S.Ct. 830, 838, 200 L.Ed.2d 122 (2018) ).) The Court agrees that Petitioner is being detained pursuant to 8 U.S.C. § 1225(b). This determination frames the Court's analysis.

B. The Statutory Framework Governing Arriving Aliens, Including Petitioner

An arriving alien, like Petitioner, who attempts to enter the United States at a designated point of entry (such as an airport) is inspected by an immigration officer upon arrival. See Clark v. Martinez , 543 U.S. 371, 373, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (citing 8 U.S.C. § 1225(a)(3) ). Unless that arriving alien is "clearly and beyond a doubt entitled to be admitted," he will undergo removal proceedings to determine admissibility. See id. (quoting 8 U.S.C. § 1225(b)(2)(A) ); see also Castro v. United States Dep't of Homeland Sec. , 835 F.3d 422, 425-26 (3d Cir. 2016) (aliens "arriving in the United States" are subject to expedited removal if an immigration officer determines they are inadmissible due to a lack of immigration papers) (citing 8 U.S.C. § 1225(b)(1)(A)(i) & (iii) ).

If an alien who arrives without immigration papers indicates to his inspecting immigration officer that he fears prosecution or torture if returned to his country, that officer "shall refer the alien for an interview by an asylum officer" to determine if the alien "has a credible fear of persecution [or torture]." 8 U.S.C. § 1225(b)(1)(A)(ii) & (B)(ii) ; 8 C.F.R. § 208.30(d). "[I]f the interviewing asylum officer [subsequently] ... concludes that the alien possesses a credible fear of persecution or torture, the alien is referred for non-expedited removal proceedings under 8 U.S.C. § 1229a, ‘during which time the alien may file an application for asylum and withholding of removal.’ " Castro , 835 F.3d at 426 n.4 (quoting 8 C.F.R. § 1208.30(g)(2)(iv)(B) ).

The foregoing procedures were utilized when Petitioner applied for admission to the United States on July 25, 2017. Petitioner's flight disembarked at JFK on July 25th, at which time Petitioner was denied admission because he lacked appropriate immigration papers. (See ECF No. 6 at PageID: 22.) In addition, the record shows that (i) an asylum officer found that Petitioner demonstrated a credible fear of persecution or torture in his home country; (ii) Petitioner subsequently underwent formal removal proceedings before an IJ during which he raised formal asylum-related claims; (iii) the IJ denied those asylum-related claims and ordered Petitioner's removal to Bangladesh; and (iv) that Petitioner's appeal of the IJ's decision is now pending before the BIA. (See id. at PageID: 15, 22; ECF No. 7 at PageID: 59.) These facts demonstrate that Petitioner is now detained pursuant to 8 U.S.C. § 1225(b)(2). See id. at § 1225(b)(2)(A) ("if the examining immigration officer determines that [an arriving alien] is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for [removal] proceeding[s].").

C. There Is No Statutory Basis To Order Petitioner's Release Or A Bond Hearing

The statute governing Petitioner's present detention states that arriving aliens "shall be detained for [removal] proceeding[s.]" See 8 U.S.C. § 1225(b)(2)(A) (emphasis added). On February 27, 2018, the United States Supreme Court issued its decision in Jennings v. Rodriguez , ––– U.S. ––––, 138 S.Ct. 830, 200 L.Ed.2d 122. Jennings , holds, inter alia , that the language within § 1225(b)"mandate[s]...