LAFAYETTE v. HENDRIX et al, No. 2:2011cv03389 - Document 13 (D.N.J. 2012)
Court Description: OPINION. Signed by Judge Claire C. Cecchi on 3/9/2012. (nr, )
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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY SHECHEM LAFAYETTE, Civil Action No. 11-3389 (CCC) Petitioner, v. ROY L. HENDRIX, : OPINION et al., Respondents. APPEARANCES: Counsel for Respondents Allan B.K. Urgent Asst. U.S. Attorney District of New Jersey Newark, NJ 07102 Petitioner pg se Shechem Lafayette Essex County Correctional Fac. 07105 Newark, NJ CECCHI, District Judge Petitioner Shechem Lafayette, an alien detained in connection with removal Correctional proceedings Facility and in currently confined Newark, New Jersey, at has Essex County submitted petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, Section 2241 provides in relevant part: (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. . . . a The named Respondents include Warden Roy L. Hendrix, U.S. Attorney and various other government officials. General Eric Holder, it Because appears not from entitled Petitioner is dismissed. See 28 U.S.C. Jamaica who Shechem has been relief, to 2011, the Petition that will be citizen of BACKGROUND Lafayette is a detained in connection proceedings since on or about January 6, dated May 18, 2 submissions § 2243. I. Petitioner parties the native 20l0. and with removal In this Petition, Petitioner challenges his prolonged detention in connection with his removal proceedings. On June 7, 2011, an Immigration Judge of Immigration Order of Removal. Appeals Thus, issued on November 4, a On November 4, ordering Petitioner removed to Jamaica. Board issued its decision 2011, decision 2011, the affirming the the Order of Removal became administratively final. 2 Petitioner has filed two Notions [ECE Docket Entry Nos. 3, 5] to Supplement the Record, that are more properly construed as supplemental briefs in support of his Petition, To that extent, this Court will grant the motions and consider the briefs. In 1988, Petitioner was convicted in the U.S. District Court for the District of Columbia of various drug and weapons charges, for which he was sentenced to a term of imprisonment of 410 months, later resentenced to a term of 292 months. United States v. Lafayette, Criminal No. 88-254-01 (D.D.C.). Petitioner was taken into custody by immigration officials immediately upon his release from prison. 2 On December 5, Circuit order docketed of 2011, the U.S. Petitioner s removal, On Court of Appeals for the Third petition January 1, for 2012, review the of the Court of final Appeals dismissed the case for failure to pay the filing fee. II. ANALYSIS Petitioner challenges his prolonged detention in advance of a final order removal. of Petitioner asserts that his prolonged detention is not authorized by law and that it violates his right under the Fifth Amendment not to be deprived of liberty without due He seeks an order for his immediate release. process. Under 8 U.S.C. § 1226(c), the Attorney General is required to detain certain deportable aliens, convicted of an relating to a aggravated including those who have been felony controlled or violating of substance, during ( pre-removal order detention ) proceedings a state their law removal Although § 1226(c) . does not provide for bail, an alien detained pursuant to § 1226(c) may move categories hearing ). In upon for of a hearing aliens subject In re Joseph, support Demore v. to of his Kim, determine to 538 he mandatory 22 I.&N. Petition, if Dec. detention 799 510 within (a the Joseph (BIA 1999). Petitioner U.S. falls relies, (2004) inter alia, (relating to 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, or that the BICE is otherwise substantially unlikely to establish that he is in fact subject to mandatory detention. 8 C.F.R. § 3.19(h) (2) (ii). 3 constitutionality m, 538 U.S. pre-removal-order of the (2003), 510 Supreme detention) . In Demore considered Court v. whether mandatory pre-removal-order detention under § 1226(c) violates due The alien conceded that he fell within the categories of process. deportable § 1226(c) . The are who aliens, subject Supreme Court to mandatory detention under found that mandatory detention of deportable criminal aliens pending their removal proceedings did not violate due process. that such proceedings Demore, 538 U.S. at 531. typically only a last The Court noted few months and that the at 529-30. In pre-removal-order detention has a finite termination point issuance of a final decision on removability. his concurrence, circumstances however, could arise Justice Kennedy took the position that in long term which pre removal order at 532-33 detention might violate due process. (Kennedy, J., concurring) Taking note of Justice Kennedy s guidance, the Court of Appeals for the Third Circuit has held that there are due process limitations on the duration of pre removal-order detention: Under the Supreme Court s holding [in Demore], Congress did not violate the Constitution when it authorized mandatory detention without a bond hearing for certain This means that the criminal aliens under § 1226(c) an alien at the beginning of Executive Branch must detain and may do removal proceedings, without a bond hearing so long as so consistent with the Due Process Clause the alien is given some sort of hearing when initially detained at which he may challenge the basis of his However, the [This is the Joseph hearing.] detention. constitutionality of this practice is a function of the At a certain point, continued length of the detention. . -- detention becomes unreasonable and the Executive Branch s implementation of § 1226(c) becomes unconstitutional unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law s purposes of preventing flight This will necessarily be and dangers to the community. a fact-dependent inquiry that will vary depending on We decline to establish a individual circumstances. universal point at which detention will always be considered unreasonable. In short, when 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. Diop v. ICE/Homeland Security, 656 F,3d 221, 232-33 (3d Cir. 2011) (footnotes omitted) During the pendency of this matter, has been entered against 5 Petitioner. a final order of removal Because a final order An order of removal becomes administratively final: (a) Upon dismissal of an appeal by the Board of Immigration Appeals; (b) Upon waiver of appeal by the respondent; (c) Upon expiration of the time allotted for an appeal if the respondent does not file an appeal within that (d) If certified to the Board or Attorney General, upon the date of the subsequent decision ordering removal; (e) If an immigration judge orders an alien removed in the alien s absence, immediately upon entry of such order; or (f) If an immigration judge issues an alternate order of removal in connection with a grant of voluntary departure, upon overstay of the voluntary departure period, or upon the failure to post a required voluntary departure bond within 5 business days. If the respondent has filed a timely appeal with the Board, the order shall become final upon an order of removal of removal has been entered, Petitioner is no longer detained pursuant to § 1226 (c), which governs only detention prior to the entry of a final order removal. of pursuant to 8 U.S.C. alien subject to Instead, final is now detained which governs the detention of an § 1231(a), a Petitioner order of removal ( post removal-order detention ) Petitioner Because § as 1226(c), he was at is no longer the time he detained filed this pursuant to Petition, the 6 challenge to his pre-removal-order detention has become moot. there is no longer a live case or controversy Petitioner s pre-removal order detention, Article III, the challenge detention will be dismissed. 761 (3d Cir. to Petitioner s U.S. As regarding Constitution, pre-removal-order See Rodney v. Mukasey, 340 Fed. Appx. 2009) by the Board or the Attorney General, or upon overstay of the voluntary departure period granted or reinstated by the Board or the Attorney General. 8 U.S.C. § 1241,1. 6 Because a final order of removal has now been issued against Petitioner, it is not likely that he will be detained ever again under the pre removal order detention provision. Thus, this is not the type of case subject to the mootness exception for cases that are capable of repetition while evading review. See Dc La Teja v. United States, 321 F.3d This exception applies only when 1357, 1361-63 (11th Cir. 2003) (1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam) . 6 To the extent the Petition could be construed as challenging Petitioner s post-removal-order detention, 678 (2001) (relating to has failed to Zadvydas v, Davis, demonstrate any entitlement to relief. U.S. he 533 constitutionality of post removal- order detention) Post-removal-order § 1231 (a) Section . detention 1231 (a) (2) is governed requires the end of the constitutional Zadvydas v. ninety principles Davis, removal day 533 U.S. period set forth 678 by is the 8 detention aliens during a ninety (90) day removal period. the by U.S.C. of such Detention beyond governed by the (2001) Supreme Court in Section 1231 (a) (1) requires the Attorney General to attempt to effectuate removal within the ninety day removal period. The removal period begins on the latest of the following: (i) The date the order of removal becomes administratively final. (ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court s final order. (iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement, 8 U.S.C. § 1231 (a) (1) (B). Section 1231 (a) (6) permits continued detention if removal is not effected within ninety days. held that temporal such However, post-removal-order reasonableness presumptively-reasonable standard. six month the Supreme Court has detention is subject Specifically, period of to once a a post removal order detention has passed, establish that his a detained alien must be released if he can removal is Zadvydas v. Davis, 533 U.S. 678 371 not reasonably foreseeable. (2001); Clark v. Martinez, 543 U.S. (2005). Thus, the alien bears the initial burden of establishing that there is good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, after which the government must come forward with evidence to rebut that showing. § Zadvydas, 1231(a) (1) (C) 533 ( The at U.S. 699-701. But see 8 U.s.c. removal period shall be extended beyond a period of ninety days and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents necessary the to alien s departure or conspires or acts to prevent the alien s removal subject to an order of removal. ) To state a claim under Zadvydas, the six month presumptivelyreasonable removal Petition is filed, period must have expired at the time the A prematurely filed petition must be dismissed without prejudice to the filing of a new Petition once the removal period has expired. e.g., Rodney v. Mukasey, 340 Fed. Appx. 761 (3d Cir. 2009); Akinvale v. Ashcroft, 287 F,3d 1050, 1051 (11th Cir. 2002) Here, 4, 2011, the applicable removal period began to run on November the date the order of removal 8 became administratively final. the Thus, six-month presumptively-reasonable removal period has not yet expired and this claim is not ripe. e.g., Ferrer-Chacon v. Department of Homeland Security, No. 06-4452, 2006 ML 3392930 Moreover, there is 2006). (D.N.J. Petitioner good reason to has alleged g believe that facts there to is no significant likelihood of removal in the reasonably foreseeable future. Petitioner repatriation, Zadvydas not has see suggested Zadvydas, individual any 533 U.S. at was a stateless individual), institutional barrier to his removal, 684-85 that suggest barriers Here, to his (alien petitioner nor has he suggested any Zadvydas, 533 U.S. at 686 (alien petitioner Kim Ho Ma was from Cambodia, a country with which the United States has no repatriation agreement) Finally, removal. in Such a request is properly filed in the Court of Appeals connection removal. Petitioner has filed a request for emergency stay of with a petition for review of a final order of Under the circumstances presented here, this Court lacks jurisdiction to enter such an order. exercise jurisdiction over the request, Even if this Court Petitioner has could failed to demonstrate any likelihood of success in his challenges to removal, The request will be denied without prejudice. Although Petitioner filed a petition for review, the Court of Appeals dismissed the Petition without granting him a stay of removal. Accordingly, the date of the Court of Appeals final order does not trigger the running of the removal period. See 8 U.S.C. § 1231 (a) (1) (B) (ii) 9 III, CONCLUSION For the reasons set forth above, the challenge to Petitioner s pre-removal-order detention will be dismissed as moot. The challenge to Petitioner s post-removal-order detention will be dismissed without prejudice as premature. An appropriate order follows. Claire C. Cecchi United States District Judge Dated: I I t 10
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