United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD UNITED STATES DISTRICT JUDGE.
Alban Lukaj, a native and citizen of Albania, initiated this
action on February 25, 2019, by filing, with the assistance
of counsel, a Petition for Writ of Habeas Corpus pursuant 28
U.S.C. § 2241 (Petition; Doc. 1). Lukaj is proceeding on
an amended petition filed on May 29, 2019 (Amended Petition;
Doc. 8). In the Amended Petition, Lukaj challenges the
lawfulness of his detention during the pendency of his
removal proceedings. Lukaj also has filed a motion requesting
an order granting him bail or an evidentiary hearing on bail
pending resolution of this case. See
Petitioner's Motion for Bail with Memorandum of Legal
Authority in Support (Bail Motion; Doc. 9). Additionally,
Lukaj filed a motion requesting “a preliminary
injunction enjoining the government from mandatorily
detaining him and granting him a bond hearing before this
Court to release him from unconstitutional detention.”
See Petitioner's Motion for Preliminary
Injunction (Preliminary Injunction Motion; Doc. 17).
Respondents filed a consolidated brief in opposition to the
Amended Petition and Bail Motion, see
Respondents' Response in Opposition to Amended Petition
for Writ of Habeas Corpus and Motion for Bail (Response; Doc.
13) with exhibits (Resp. Ex.),  as well as a response to the
Preliminary Injunction Motion. See Respondents'
Response in Opposition to Petitioner's Motion for
Preliminary Injunction (Doc. 21). Lukaj filed a brief in
reply to the Response, see Petitioner's Reply to
Respondent's Response in Opposition to Amended Petition
for Writ of Habeas Corpus and Motion for Bail (Reply; Doc.
18), and a reply to Respondents' response to his
Preliminary Injunction Motion. See Petitioner's
Reply to Respondent's Response in opposition to
Petitioner's Motion for Preliminary Injunction (Doc. 26).
This case is ripe for review.
was admitted to the United States as a refugee from Albania
on August 21, 1991, and his status was adjusted to lawful
permanent resident on February 12, 1993. Resp. Ex. 1 at 4. On
September 24, 2009, a Florida criminal court convicted Lukaj
of trafficking in MDMA, more than 400 grams but less than 30
kilograms, and conspiracy to traffic in MDMA, more than 400
grams but less than 30 kilograms. Id. The state
court sentenced Lukaj to a term of incarceration of four
years in prison, with each count to run concurrently.
Id. Thereafter, on August 9, 2010, a Florida
criminal court convicted Lukaj of aggravated battery with a
firearm and sentenced him to a term of incarceration of ten
years in prison, ordering his sentence to run concurrently
with the previously imposed sentence for the drug
17, 2015, the Department of Homeland Security (DHS) initiated
removal proceedings, asserting that Lukaj was eligible for
removal on four grounds: specifically his convictions for:
(1) an aggravated felony involving illicit trafficking of a
controlled substance; (2) an aggravated felony constituting a
crime of violence; (3) a crime relating to a controlled
substance; and (4) a crime involving the possession of a
firearm. Id. at 3. On March 15, 2016, an Immigration
Judge sustained all four charges of removability, denied
Lukaj's applications for asylum and cancellation of
removal, and ordered Lukaj to be deported to Serbia, or, in
the alternative, Albania. Id. at 30. The Immigration
Judge also determined that the nature of Lukaj's
convictions rendered him ineligible for cancellation of
removal. Id. at 27.
appealed the Immigration Judge's order of removal to the
Board of Immigration Appeals (Board). Resp. Ex. 2. On appeal,
Lukaj argued the Immigration Judge committed the following
procedural errors: (1) misallocating the burden of proof; (2)
refusing to accept telephonic testimony from potential
witnesses; (3) admitting irrelevant and prejudicial evidence
into the record; (4) unreasonably denying his request for a
continuance; and (5) failing to recuse herself. Id.
at 5. Lukaj also challenged the Immigration Judge's legal
analysis with respect to the merits of the aggravated felony
and firearm offense charges. Id. On January 30,
2017, the Board issued a written decision finding Lukaj to be
removable and ineligible for cancellation of removal, and
dismissing the appeal. Id. at 8.
February 21, 2016, Lukaj petitioned the Eleventh Circuit
Court of Appeals (Eleventh Circuit) to review the Board's
decision. Resp. Ex. 4. During the pendency of that appeal,
Lukaj completed his state prison sentences and Immigration
and Customs Enforcement (ICE) immediately detained him
following his release on August 15, 2018. Amended Petition at
6. On February 26, 2019, the Eleventh Circuit granted in
part, and dismissed in part, Lukaj's petition for review.
Resp. Ex. 3. The Eleventh Circuit granted Lukaj's
petition to the extent that Lukaj challenged the denial of
his applications for asylum, withholding of removal, and
cancellation of removal in light of the United States Supreme
Court's decision in Sessions v. Dimaya, 138
S.Ct. 1204 (2018). In remanding the case to the Board for
reconsideration, the Eleventh Circuit held the “Board
should be given the first opportunity to decide how to
classify Lukaj's conviction for aggravated battery and to
determine whether he is eligible for asylum, withholding of
removal, and cancellation of removal.” Resp. Ex. 3 at
The Eleventh Circuit issued the Mandate on April 19, 2019.
Resp. Ex. 4.
August 2, 2019, pursuant to the Eleventh Circuit's
Mandate, the Board issued a decision again denying
Lukaj's motion to remand to the Immigration Judge and
dismissing Lukaj's appeal of the Immigration Judge's
decision. Doc. 20-1. The Board concluded that Lukaj is
removable and does not qualify for any form of relief or
protection against removal. Id. at 6. On August 13,
2019, Lukaj filed a petition for review in the Eleventh
Circuit. See Doc. 26-1.
Governing Legal Principles
to 28 U.S.C. § 2241(c)(3), a person held in custody can
petition for a writ of habeas corpus where the person alleges
that he or she “is in custody in violation of the
Constitution or laws or treaties of the United States.”
This section confers jurisdiction upon the federal courts to
hear cases challenging the lawfulness of immigration-related
detention. See Zadvydas v. Davis, 533 U.S. 678,
687-88 (2001); see also Demore v. Kim, 538 U.S. 510,
517 (2003) (noting that federal courts have jurisdiction in
habeas proceedings to review constitutional challenges to
Relevant Immigration Law
Process Clause of the Fifth Amendment provides in part that
“[n]o person shall ... be deprived of life, liberty, or
property, without due process of law....” U.S. Const.
amend. V. It is beyond dispute that the Fifth Amendment
entitles aliens to due process in deportation proceedings.
Reno v. Flores, 507 U.S. 292, 306 (1993). Indeed,
the Supreme Court has unequivocally stated that “the
Due Process Clause applies to all ‘persons' within
the United States, including aliens, whether their presence
here is lawful, unlawful, temporary, or permanent.”
Zadvydas, 533 U.S. at 693. Nevertheless,
“detention during deportation proceedings [is] a
constitutionally valid aspect of the deportation
process.” Demore, 538 U.S. at 523. By statute,
the Attorney General is required to take into custody any
alien who is inadmissible or deportable by reason of having
committed certain enumerated criminal offenses after the
alien has been released from criminal incarceration. 8 U.S.C.
§ 1226(c)(1). The only statutory exception to this
requirement is if release of the alien is necessary to
effectuate witness protection so long as the release of the
alien would not pose a danger or flight risk. Id. at
§ 1226(c)(2). Notably, another provision of this statute
explicitly prohibits the Attorney General from releasing on
bond criminal aliens as defined in § 1226(c).
Id. at 1226(a); see also Jennings v.
Rodriguez, 138 S.Ct. 830, 837 (2018) (noting that
“[s]ection 1226(c), however, carves out a statutory
category of aliens who may not be released under
§ 1226(a).”) (emphasis in original).
Demore, the United States Supreme Court held that
§ 1226(c) does not violate the due process rights of
criminal aliens who have conceded their deportability and are
being detained for the limited period of their removal
proceedings. Demore, 538 U.S. at 513. In reaching
this conclusion, the Supreme Court reasoned that because
§ 1226(c) concerns detention pending removal
proceedings, the detention does not run the risk of
being indefinite or potentially permanent and “[s]uch
detention necessarily serves the purpose of preventing
deportable criminal aliens from fleeing prior to or during
their removal proceedings, ” which increases the
likelihood that the alien will be successfully removed.
Id. at 528. In Demore, the permanent
resident alien argued that the Fifth Amendment required an
individualized bond hearing to determine whether he was
either a danger to society or a flight risk. Id. at
514. However, the Supreme Court disagreed, holding that
“when the Government deals with deportable aliens, the
Due Process Clause does not require it to employ the least
burdensome means to accomplish its goal” and
“[t]he evidence Congress had before it certainly
supports the approach it selected [mandatory detention
pending removal proceedings] even if other, hypothetical
studies might have suggested different courses of
action.” Id. at 528.
to the Supreme Court's determination that mandatory
detention under § 1226(c) survived a constitutional due
process challenge in Demore was its consideration of
removal proceeding statistics. In reaching its decision the
Court relied on statistics showing that, in the majority of
cases, a criminal alien's removal proceedings lasted less
than 90 days. Id. at 529 (“[I]n 85% of the
cases in which aliens are detained pursuant to §
1226(c), removal proceedings are completed in an average time
of 47 days and a median of 30 days. In the remaining 15% of
cases, in which the alien appeals the decision of the [IJ] to
the [BIA], appeal takes an average of four months, with a
median time that is slightly shorter.”) (internal
citations omitted). The Supreme Court concluded that
mandatory detention under § 1226(c) “lasts roughly
a month and a half in the vast majority of cases” and
up to “about five months” where the alien
appeals. Id. at 530. Noting that the alien
petitioner had been in custody only slightly longer than
average and that he had requested a continuation of his
removal hearing, the Court determined that his due process
challenge failed. Id. at 531.
concurring opinion, Justice Kennedy observed that, while
pre-removal detention without a bond hearing is
constitutional, it can grow so long that it violates Due
Process. Id. at 531-33 (Kennedy, J., concurring).
“[S]ince the Due Process Clause prohibits arbitrary
deprivations of liberty, a lawful permanent resident
alien… could be entitled to an individualized
determination as to his risk of flight and dangerousness if
the continued detention became unreasonable or
unjustified.” Id. at 532 (citing
Zadvydas, 533 ...