NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

IAN T. MAYNARD, :

Civil Action No. 11-0605 (WJM)

Petitioner, :

v. : OPINION

ROY L. HENDRIX, :

Respondent. :

APPEARANCES:

Petitioner pro se Counsel for Respondent

Ian T. Maynard Jordan Milowe Anger

Essex County Correctional Fac. Assistant U.S. Attorney

354 Doremus Avenue 970 Broad Street, 7th Floor

Newark, NJ 07105 Newark, NJ 07102

MARTINI, District Judge

Petitioner Ian T. Maynard, an alien detainee, has submitted

a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241, challenging his prolonged detention in connection with 1

removal proceedings. 

 Section 2241 provides in relevant part: 1

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective

jurisdictions.

(c) The writ of habeas corpus shall not extend to a

prisoner unless-- ... (3) He is in custody in violation

of the Constitution or laws or treaties of the United

States ... .

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The sole respondent is Roy L. Hendrix, warden of Essex

County Correctional Facility in Newark, New Jersey.

This matter is presently before the Court pursuant to

Respondent’s submission of a Motion [9] to Dismiss and an Answer

requesting, in the alternative, that the Petition be denied on

the merits.

I. BACKGROUND

Petitioner was born on April 14, 1969, in St. Kitts-Nevis,

and entered the United States on August 2, 1979. Petitioner was

never naturalized as a citizen of the United States.

Upon his release from jail, Petitioner entered immigration

custody on or about June 28, 2010. Prior to his entry into

immigration custody, immigration officials had determined that,

based on his criminal history, Petitioner must be detained 2

pending a final determination of his removability. See 8 U.S.C.

§ 1226(c)(1)(B). See also 8 U.S.C. § 1227(a)(2)(A)(ii) (relating

to conviction of two or more crimes involving moral turpitude).

The original Notice to Appear asserted removability solely

based upon Petitioner’s March 2003 conviction of the offense of

 It is not in dispute that Petitioner has been convicted in 2

the Superior Court of New Jersey, Essex County, of: (1) violation

of N.J. Stat. 2C:35-5b(3) (possession with intent to distribute

heroin) (November 6, 1997); (2) violation of N.J. Stat. 2C:35-

10a(1) (manufacture, distribute and/or dispense heroin and

cocaine) (March 3, 2000); (3) violation of N.J. Stat. 2C:35-5b(3)

(possession of a controlled dangerous substance, here, cocaine)

(April 3, 2003).

2

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possessions with intent to distribute controlled dangerous

substances in violation of N.J.Stat. 2C:35-10a(1). On July 15,

2010, less than one month after Petitioner entered immigration

custody, his removal proceedings began. There were a total of 14

adjournments during the course of those proceedings. It is

undisputed that ten were at the request of Petitioner, to seek

representation or to prepare his case and applications for

relief, three were made for administrative reasons, and one was

made at the request of the government. 

During the proceedings, on November 5, 2010, the government

amended the charges relating to Petitioner’s removability to

include all three of Petitioner’s drug convictions. The amended

charging document was served on Petitioner four days later, on

November 9, 2010. Petitioner does not appear to have disputed

the convictions. In addition, the schedule of adjournments does

not reflect that any adjournment resulted from this amendment. 

More specifically, the hearing scheduled for November 4, 2010,

before the amendment, was adjourning to allow Petitioner to

prepare his case and the hearing scheduled for December 8, 2010,

after the amendment, was continued because there was insufficient

time to complete the hearing. (Motion to Dismiss, Ex. E.)

On January 27, 2011, approximately seven months after he

entered immigration custody, and while his removal proceedings

were ongoing, Petitioner submitted this Petition for writ of

3

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habeas corpus, challenging his prolonged pre-removal-order

detention and urging this Court, under the Due Process Clause of

the Fifth Amendment, to construe the relevant detention statute

as not authorizing his continued detention in the absence of a

constitutionally adequate custody hearing, especially where he

has “substantial challenges” to his removal.3

On May 18, 2011, the Immigration Judge ordered Petitioner

removed. Two days later, on May 20, 2011, Respondent moved to

dismiss the Petition, asserting that Petitioner’s continued

detention was lawful and constitutional under the U.S. Supreme

Court decision in Demore v Kim, 538 U.S. 510 (2002). In the

alternative, Respondent answered the Petition and requested that

the Petition be denied on the merits. As noted by Respondent, 

the Order of Removal would become final in thirty days, or on

June 17, 2011, unless Petitioner appealed to the Board of

Immigration Appeals. See 8 C.F.R. § 1003.28(b). 4

 Petitioner does not elaborate on the nature of the alleged 3

“substantial challenges” to his removal.

 This point is significant because, once an order of 4

removal becomes final, detention continues under 8 U.S.C.

§ 1231(a), which governs the detention and removal of an alien

subject to a final order of removal. Thus, if Petitioner were

now detained under the post-removal-order statute, § 1231(a), the

issue of the propriety of his earlier detention under the preremoval-order statute, § 1226(c), probably would be moot. 

Section 1231(a)(1) requires the Attorney General to attempt

to effectuate removal within a 90-day “removal period.” Section

1231(a)(6) permits continued detention if removal is not effected

within 90 days. However, the Supreme Court has held that such

4

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In his Reply, dated June 7, 2011, Petitioner did not state

whether he had appealed, or intended to appeal, the Immigration

Judge’s removal decision to the Board of Immigration Appeals. 

Neither party has updated the Court on the current status of the

removal order or of any appeals that may have been filed. As 5

Respondent is under order of this Court to advise the Court

within seven days of any change in Petitioner’s custody status,

see Order [5] to Answer, this Court will proceed under the

understanding that the order of removal is not yet “final” and

that Petitioner remains detained under § 1226(c).

II. ANALYSIS

Title 28 U.S.C. Section 1226(c) requires federal immigration

authorities to take into custody any person who is removable from

this country because he has committed certain crimes, including,

for example, certain crimes involving moral turpitude or

controlled substances. Pre-removal-order detention under this

post-removal-order detention is subject to a temporal

reasonableness standard. Specifically, subject to certain

limited exceptions, once a presumptively-reasonable six-month

period of post-removal-order detention has passed, a resident

alien must be released if he can establish that his removal is

not reasonably foreseeable. See generally Zadvydas v. Davis, 533

U.S. 678 (2001); Clark v. Martinez, 543 U.S. 371 (2005).

 As of the dates the Motion/Answer and Reply were filed, 5

Petitioner had available to him the option to appeal the order of

removal to the Bureau of Immigration Appeals and, if

unsuccessful, thereafter, to seek review in the Court of Appeals. 

The Court notes that a PACER search of filings in the United

States Court of Appeals for the Third Circuit reflects that no

petition for review has been filed in that Court.

5

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statute is mandatory, does not permit release on bond, and does

not, by its terms, impose any limitations on the length of

detention.6

In Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court

considered whether mandatory pre-removal-order detention under

§ 1226(c) violates due process. In the case of an alien who

conceded that he fell within the categories of deportable aliens

subject to mandatory detention under § 1226(c), the Supreme Court

found that detention of deportable criminal aliens pending their

removal proceedings did not violate due process. 538 U.S. at

531. The Court noted that such proceedings typically last only a

few months and, in contrast to the potentially indefinite postremoval-order period detention rejected in Zadvydas v. Davis, 533

U.S. 678 (2001), pre-removal-order detention has a finite

termination point. 538 U.S. at 529-530. In his concurrence, 7

Justice Kennedy took the position that circumstances could arise

 Although § 1226(c) does not provide for bail, an alien 6

detained pursuant to § 1226(c) may move for a Joseph hearing to

determine if he falls within the categories of aliens subject to

mandatory detention. In re Joseph, 22 I.&N. Dec. 799 (BIA 1999). 

At the Joseph hearing, a detainee may avoid mandatory detention

by demonstrating that he is not an alien, was not convicted of

the predicate crime(s), or that the BICE is otherwise

substantially unlikely to establish that he is in fact subject to

mandatory detention. See 8 C.F.R. § 3.19(h)(2)(ii). Here, there

is no dispute that Petitioner falls within the class of criminal

aliens subject to mandatory detention under § 1226(c).

 The petitioner in Demore had been detained approximately 7

six months at the time his petition was decided.

6

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in which long-term pre-removal-order detention might violate due

process. 538 U.S. at 532-33 (Kennedy, J., concurring).

While this matter was pending, the Court of Appeals for the

Third Circuit addressed the question whether prolonged detention

under § 1226(c) can ever violate an alien’s right not to be

deprived of liberty without due process. See Diop v.

ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011). Applying the

principle of statutory construction that “‘when an Act of

Congress raises a serious doubt as to its constitutionality, ...

[courts] will first ascertain whether a construction of the

statute is fairly possible by which the question may be avoided,” 

Diop, 656 F.3d at 231 (quoting Zadvydas, 533 U.S. at 678), the

Court of Appeals concluded that § 1226(c) “implicitly 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 of

ensuring that an alien attends removal proceedings and that his

release will not pose a danger to the community.” Diop, 656 F.3d

at 231. “[W]hen 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.

The Court of Appeals held that reviewing courts “must

exercise their independent judgment as to what is reasonable.” 

7

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Diop, 656 F.3d at 234. The Court declined to adopt any one-sizefits-all approach to the length of pre-removal-order detention

that should be deemed reasonable. To the contrary, the

reasonableness determination must take into account a given

individual detainee’s need for more or less time, the exigencies

of a particular case, and errors in the proceedings that cause

unnecessary delay. Id. Nevertheless, the Court noted that,

given the fact that the Supreme Court believed that the purposes

of the statute would be fulfilled in the vast majority of cases

within a month and a half, and five months at the maximum, “the

constitutional case for continued detention without inquiry into

its necessity becomes more and more suspect as detention

continues past those thresholds.” Id. 

In Diop, the petitioner had been detained for three years at

the time his petition was decided. Although the removal

proceedings had included several continuances at the petitioner’s

request, the proceedings had been prolonged also because of

numerous errors by the immigration judge, necessitating appeals,

combined with the government’s failure timely to secure evidence

that bore directly on the issue of whether the petitioner was

properly detained.

Here, without benefit of the Diop decision, Respondent has

urged this Court to dismiss the Petition on the ground that,

under Demore, there is no “reasonableness” limitation to the

8

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length of detention under § 1226(c). As noted above, the Court

of Appeals rejected this position in its opinion in Diop. Thus,

this Court must deny the Motion to Dismiss under Demore.

Even without benefit of the Diop decision, however,

Respondent argued that the length of Petitioner’s detention was

not unreasonable, because the length of the proceedings was due

primarily to Petitioner’s actions, and asked this Court to deny

the Petition. This Court agrees that the length of Petitioner’s

detention was not unreasonable.

Petitioner appeared for his first hearing less than three

weeks after entering immigration detention. Petitioner filed his

Petition approximately seven months after entering immigration

detention, only a short time longer than the petitioner in Demore

was detained, a period clearly not unreasonable, especially in

light of the fact that, of the seven continuances during that

period, one was at the request of the government, one was because

there was insufficient time to complete the hearing, and the

remaining five were at the request of Petitioner. By the time

Respondent answered the Petition and moved to dismiss,

approximately eleven months had elapsed. As noted above, during

that time, Petitioner had ten times requested continuances to

obtain counsel or prepare his case. (Motion to Dismiss, Ex. E,

Decl. of Immigration Court Administrator Charlene McLaughlin.)

9

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In his Reply, while arguing (correctly) that § 1226 contains

an implicit “reasonableness” limitation, Petitioner offered

nothing to explain why the particular facts surrounding the

length of his detention rendered his detention unreasonably

prolonged. As in Demore, Petitioner does not contest that he

falls within the categories of criminal aliens subject to

mandatory detention under § 1226(c). Contrary to the situation

presented in Diop, Petitioner cannot point to numerous errors by

the Immigration Judge necessitating numerous appeals. Instead,

the delays here are attributable almost exclusively to

Petitioner’s repeated requests for adjournments. Nevertheless,

Petitioner has provided this Court with no explanation of the

reasons for the repeated requests for continuances. Petitioner

cannot repeatedly request continuances and then complain that the

resultant prolonged detention is unconstitutionally unreasonable. 

To the extent there has been any delay since briefing on this

matter was completed, Petitioner again has failed to apprise this

Court of the relevant circumstances. Accordingly, this Court

finds that Petitioner’s detention has not been unconstitutionally

prolonged.

10

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III. CONCLUSION

For the reasons set forth above, the Motion [9] to Dismiss

will be denied, but the Petition will be denied on the merits,

without prejudice to Petitioner filing a new and separate

petition should his continued detention become unreasonably

prolonged. An appropriate order follows.

 

 s/William J. Martini

 

William J. Martini

United States District Judge

Dated: December 12, 2011

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