The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
YEFRI A. C. M., Civil Action No. 20-13340 (SRC)
Petitioner,
v. OPINION
JOHN TSOUKARIS, et al.,
Respondents.
CHESLER, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Yefri A.
C. M., filed pursuant to 28 U.S.C. § 2241. (ECF No. 1). Following an order to answer, the
Government filed a response to the petition (ECF No. 4), to which Petitioner has replied. (ECF
No. 6). For the following reasons, this Court will deny the habeas petition without prejudice.
I. BACKGROUND
Petitioner is a native and citizen of the Dominican Republic who was admitted to the
United States as a lawful permanent resident in August 2010. (Document 1 attached to ECF No.
4). In July 2019, Petitioner was convicted of unlawful possession of a weapon in New Jersey state
court. (Id.)._Following Petitioner’s sentence, on January 30, 2020, Petitioner was taken into
immigration detention pursuant to 8 U.S.C. § 1226(c), and has remained detained since that time.
(Id.). Following immigration proceedings including the litigation of two unsuccessful motions to
terminate removal proceedings and Petitioner’s applications for relief from removal (see
Document 1 attached to ECF No. 5), an immigration judge ordered him removed on July 2, 2020.
(Document 3 attached to ECF No. 4 at 1). Petitioner thereafter filed an appeal with the Board of
Immigration Appeals, which remains pending before the Board at this time. (See Document 14
attached to ECF No. 1).
II. DISCUSSION
A. Legal Standard
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).
B. Analysis
In his habeas petition, Petitioner argues that his continued immigration detention without
a bond hearing pursuant to 8 U.S.C. § 1226(c) violates his right to Due Process in light of the Third
Circuit’s decision in Santos v. Warden Pike Cnty. Corr. Facility, 965 F.3d 203, 209 (3d Cir. 2020).
In Santos, the Third Circuit reaffirmed that detention without a bond hearing under § 1226(c) can
amount to an unconstitutional application of the statute in those cases where the detention becomes
so prolonged as to be arbitrary. Id. In determining whether detention has become
unconstitutionally prolonged, Santos instructs courts to look to the following factors – the length
of detention and the likelihood that detention will continue for a considerable time, the cause for
any delays in the underlying immigration proceedings especially where any such delay is the result
of bad faith or carelessness by one of the parties, and whether the conditions under which the
petitioner is confined is “meaningfully different from [punitive] criminal detention.” Id. at 210-
11. The first factor – the length of detention – is the most important to be considered and is
accorded the greatest weight in determining whether continued detention without bond amounts
to an unconstitutional application of the statute. Id. The Third Circuit, however, rejected a bright
line rule approach, finding that even detention of over a year may pass constitutional scrutiny, as
it is only meaningfully different from criminal detention.” Id. at 210-11.
In this matter, Petitioner has been detained for just over a year – since January 30, 2020 –
and is currently subject to an order of removal with an appeal of that order pending before the
Board of Immigration Appeals pending since early July 2020. Given the length of time his appeal
has been before the Board, and the fact that detention under § 1226(c) will conclude – and
mandatory detention under 8 U.S.C. § 1231(a) begin – upon the issuance of a decision affirming
the order of removal by the Board, this Court concludes that, absent a decision from the Board
overturning Petitioner’s order of removal, Petitioner’s detention under § 1226(c) is likely to
continue only for a brief time until the Board issues its decision on Petitioner’s appeal. Standing
on its own, this period of detention and the likely brief period of additional detention is not so
prolonged in and of itself to impugn Petitioner’s right to Due Process. See, e.g., Dryden v. Green,
321 F. Supp. 3d 496, 502 (D.N.J. 2018). Turning to the delays in Petitioner’s removal proceedings,
it appears that Petitioner’s proceedings before the immigration judge concluded in relatively
expedient fashion, delayed in large part only by Petitioner’s apparently good faith challenges to
his charges of removal including two motions to terminate proceedings and Petitioner’s
applications for relief from removal,1 and the Court thus finds that the delay factor therefore neither
weighs in favor of or against a finding that Petitioner’s detention has become prolonged. Turning
to the final factor, Petitioner’s conditions of confinement – which include being housed in a special
unit within a county jail separate and apart from convicted prisoners and pre-trial detainees – are
meaningfully different from detention within a state prison such as that which was at issue in
Santos, and, notwithstanding the ongoing COVID-19 pandemic,2 those conditions do not provide
any significant support for the conclusion that Petitioner’s detention for just over a year has
become unconstitutionally prolonged. Having considered all of the relevant factors, this Court
concludes that Petitioner’s ongoing detention has not yet become so unduly prolonged as to
amount to a violation of his right to Due Process, and Petitioner is therefore not entitled to a bond
hearing at this time. Petitioner’s habeas petition is therefore denied without prejudice.
1 Petitioner attempts to argue that the Government was unreasonable for pursuing removal initially
based solely on Petitioner’s prior weapons conviction, and by only adding charges of removability
based on other qualifying convictions after Petitioner challenged that basis for removal, arguments
which apparently failed to persuade the immigration judge assigned to Petitioner’s case to grant
him relief from removal. This Court need not and will not second guess the immigration judge’s
decisions as Petitioner is required to exhaust those claims before the BIA before presenting them
here, but in any event finds that the Government does not appear to have acted unreasonably – it
sought to remove Petitioner based on his criminal record, and amended its charges, as it is
permitted to do by statute, see Gilkes v. Att’y Gen., 617 F. App’x 168, 173 (3d Cir. 2015), when
that basis was challenged, ultimately resulting in an order of removal. The Government’s actions
do not retroactively become unreasonable solely because Petitioner disagrees with their outcome.
2 Petitioner does not argue in his petition that COVID-19 provides a basis for relief in and of itself,
see generally Hope v. Warden York County Prison, 972 F.3d 310 (3d Cir. 2020), but instead
suggest that the virus and resulting conditions renders his current detention indistinguishable from
criminal punishment. Hope, however, stands for the proposition that immigration detention is not
likely to be unduly punitive, and thus amount to a constitutional violation, where the facility in
question has taken sufficient steps to mitigate the threat the virus poses to its detainee population.
Id. at 325-29. The documents submitted in this matter show that the jail in which Petitioner is
detained has taken substantial protective steps in light of COVID-19 (see Document 4 attached to
ECF No. 4), and this Court thus rejects the suggestion that COVID-19 has rendered Petitioner’s
detention indistinguishable from criminal punishment on the record presented.
III. CONCLUSION
For the reasons expressed above, Petitioner’s habeas petition (ECF No. 1) is DENIED
WITHOUT PREJUDICE. An appropriate order follows.
s/ Stanley R. Chesler
Hon. Stanley R. Chesler,
Dated: February 9, 2021 United States District Judge