REHAN ZUBERI VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 29, 2020
• Docket: A-1972-18T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1972-18T3

REHAN ZUBERI,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent. _____________________________

Submitted December 19, 2019 – Decided January 29, 2020

Before Judges Nugent and Suter.

On appeal from the New Jersey Department of Corrections.

Adam W. Toraya, attorney for appellant.

Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Stephanie R. Dugger, Deputy Attorney General, on the brief).

PER CURIAM Appellant, Rehan Zuberi, an inmate at Southern State Correctional

Facility, appeals from a final decision of the Department of Corrections (DOC)

that denied his request for a reduced-custody status to "Full Minimum." He

argues:

THE INSTITUTIONAL CLASSIFICATION COMMITTEE’S DECISION TO PLACE OVERRIDE CODE B UPON PLAINTIFF AND DENY HIM MINIMUM STATUS WAS ARBITRARY, CAPRICIOUS AND FUNDAMENTALLY UNFAIR.

For the following reasons, we affirm.

On September 5, 2017, a judge sentenced appellant to an aggregate prison

term of eight years with two years and eight months of parole ineligibility for

money laundering, commercial bribery, and theft by deception. As with all new

inmates, appellant underwent initial classification processing (N.J.A.C. 10A:9-

2.1(a)) and thereafter began to serve his sentence at Mid-State Correctional

Facility. Of the six categories of custody status within the New Jersey

Department of Corrections—close custody, maximum custody, medium

custody, gang minimum custody, full minimum custody, and community

custody, N.J.A.C. 10A:9-4.1(a)—he was assigned medium custody status.

Appellant's status was based on application of an "override code," a code

applied "when an inmate cannot be assigned to the recommended custody status

A-1972-18T3 2 indicated by the custody status score on the Initial or Reclassification

Instruments." N.J.A.C. 10A:9-2.14(a). The applicable override code was "Code

F: Medium custody status assignment of above pending U.S. Immigration and

Customs Enforcement (ICE) response indicating interest pursuant to N.J.A.C.

10A:9-4.6(n). . . ." N.J.A.C. 10A:9-2.14(a)(7). N.J.A.C. 10A:9-4.6(n) states:

"Foreign born inmates, excluding U.S. territories and possessions, shall be

eligible to be considered for reduced custody status provided the U.S.

Immigration and Customs Enforcement (ICE) has not responded to referrals

within 120 calendar days." On September 15, 2017, ten days after appellant was

sentenced, ICE had sent the DOC an "Interest Letter" that stated, "[s]ubject is

currently under investigation as a criminal alien and may receive an immigration

detainer in the future as DHS 1 processes according to release date."

Appellant was subsequently transferred to Southern State Correctional

Facility. Based on his scores on a "Reclassification Instrument," appellant could

have been assigned full minimum custody status, but was assigned medium

custody status based on override "Code B: Medium custody status assignment

or above pending disposition of non-permissible detainer or open charge

pursuant to N.J.A.C. 10A:9-4.6." N.J.A.C. 10A:9-2.14(a)(2).

1 Department of Homeland Security. A-1972-18T3 3 Following some procedural events not relevant to the sole issued raised

by this appeal, and the DOC's confirmation that ICE continued its interest in

appellant and intended to lodge a detainer "once the case was processed,"

appellant exhausted his administrative remedies challenging the applicability of

the B override. He contended the interest expressed by ICE was not considered

a detainer. The DOC responded that "[t]he Interest Letter lodged by ICE is a

non-permissible detainer for purposes of reduced custody." DOC has

consistently considered ICE letters of active interest in inmates as non-

permissible detainers precluding reduced custody status until the involvement

by ICE is resolved, and uses the B override code if required.

On appeal, appellant cites N.J.A.C. 10A:9-4.6(h) through (n), which

enumerate the detainers and open charges that will preclude reduced custody

status when an inmate would otherwise qualify for such status. Appellant points

out that he has no detainers and no open charges. He insists that an ICE letter

of interest is neither a detainer nor an open charge, and the DOC's contrary

position is arbitrary, capricious, and unreasonable. He also claims he has been

granted lawful permanent residency and was turned over to ICE after his arrests

for the current charges, so his conviction of these charges cannot result in his

removal from the United States.

A-1972-18T3 4 Our review of agency determinations is limited. In re Stallworth, 208 N.J.

182, 194 (2011). In reviewing administrative adjudications, an appellate court

must undertake a "careful and principled consideration of the agency record and

findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J.

458, 468 (1985). We accord a "strong presumption of reasonableness" to the

agency's exercise of its statutorily delegated responsibilities, City of Newark v.

Nat. Res. Council, 82 N.J. 530, 539 (1980), and generally "defer to the

specialized or technical expertise of the agency charged with administration of

a regulatory system." In re Application of Virtua-West Jersey Hosp. Voorhees

for a Certificate of Need, 194 N.J. 413, 422 (2008).

For these reasons, we ordinarily will "not disturb an administrative

agency's determinations or findings unless there is a clear showing that (1) the

agency did not follow the law; (2) the decision was arbitrary, capricious, or

unreasonable; or (3) the decision was not supported by substantial evidence. "

Ibid. The burden of showing that the agency's action was arbitrary,

unreasonable, or capricious rests upon the appellant. See Barone v. Dep't of

Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986).

In New Jersey, "the Commissioner of the Department of Corrections has

complete discretion in determining an inmate's place of confinement. . . ." Smith

A-1972-18T3 5 v. N.J. Dep't of Corr., 346 N.J. Super. 24, 29 (App. Div. 2001) (citing N.J.S.A.

30:4-91.2). Moreover, "a reduction in custody status is a matter of privilege,

not of right." Id. at 30 (citing N.J.A.C. 10A:9-4.2).

Here, the DOC's decision was not arbitrary, capricious, or unreasonable.

Our deference to the DOC's expertise is appropriate with respect to

administration of the regulatory scheme concerning security status assigned to

inmates. This is particularly so here, considering the Commissioner's

knowledge of the implications of an ICE letter of interest to the potential federal

custody of a current State inmate, and the security risks posed by such

implications. Appellant has not overcome the "strong presumption of

reasonableness" to the agency's exercise of its statutorily delegated

responsibilities. Nat. Res. Council, 82 N.J. at 539.

Nor is appellant's argument that he cannot be deported persuasive. The

argument is based on hearsay statements from his attorney and does not explain

why ICE continues its interest in him.

Affirmed.

A-1972-18T3 6