MAXWELL v. HOLDER et al, No. 2:2012cv00747 - Document 8 (D.N.J. 2012)
Court Description: OPINION. Signed by Judge Dennis M. Cavanaugh on 10/26/12. (jd, )
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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ANTHONY MAXWELL, Petitioner, Civil No. 12-747 (DMC) V. ERIC H, HOLDER, JR., et al., OPINION Respondents. APPEARANCES: ANTHONY MAXWELL, 088-230-653 Petitioner pro se Essex County Correctional Facility 354 Doremus Avenue Newark, N.J. 07105 JESSICA W.P. D ARRIGO, Counsel for Respondents U.S. Department of Justice P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 CAVANAUGH, District Judge 2012, On January 30, Anthony Maxwell ( Petitioner ) petition for a writ of habeas corpus under 28 U.S.C. filed a § 2241 challenging his detention in the custody of the Department of Homeland Security ( DHS ) on the grounds that it is not statutorily authorized and it violated due process guaranteed by the Fifth Amendment. will be denied. For the reasons stated below, the petition I. BACKGROUND Petitioner is a native and citizen of Jamaica who came to the United States in 1985. of Michael Dugan (Pet. 2; ¶ ( Dugan Decl. ) Resp t s Br., Ex. A, On October 21, 2a.) Decl. 2005, Petitioner entered a guilty plea in the Superior Court of the State of New Jersey, Essex County, for sexual assault pursuant to Section 2C:l4-2B in the second degree. ¶ (Dugan Decl. Petitioner was sentenced to seven years imprisonment, percent mandatory minimum. In February 2011, (c) with an 85 Petitioner was served with a Notice to Appear before the Newark, Immigration Court for removal proceedings. 2b.) New Jersey, (Resp t s Br., Ex. C, The Notice charged him with being subject to Notice to Appear.) removal from the United States under 8 U.S.C. § 1182 (a) (6) (A) (i) on the grounds that he had entered the United States without being admitted or paroled. () The Notice further charged Petitioner with being subject to removal under 8 U.S.C. 1182 (a) (2) (A) (i) (I) as an alien who has been convicted of a crime involving moral turpitude. On July 18, 2011, immigration judge. () Petitioner was ordered removed by the (Resp t s Br., Ex. A, Dugan Decl. Petitioner filed an appeal with the BIA on August 17, December 1, 2011, § ¶ 2d.) 2011 and on the BIA dismissed his appeal and affirmed the immigration judge s decision, administratively final. making his removal order (I at ¶ 2f.) 2 The BIA denied Petitioner s motion to re-open his immigration proceedings on January 25, 2012. (j. at ¶ On February 6, 2012, 2h.) Petitioner filed a petition for review with the United States Court of Appeals for the Third Circuit challenging the BIA s denial of his appeal and a motion to stay removal. (Resp t s Br., Ex. D, Dkt. Report for Petition for Review (12-1297).) The Third Circuit denied Petitioner s request for stay of removal on March 19, 2012. (.J Petitioner s petition for review is still pending before the Third Circuit. () On January 30, 2012, Petitioner submitted his petition for a writ of habeas corpus to this Court. (Docket. Entry No. 1.) Petitioner also submitted a request for a stay of removal. (J Petitioner argues that his detention violates his due process rights and he seeks: (1) issuance of a writ of habeas corpus directing Respondents to bring Petitioner to the Court and explain why the Petitioner should not be released from custody; (2) a declaratory judgment stating that Petitioner is eligible to be released on bond, that DHS interpretation of the Immigration and Nationality Act is arbitrary and capricious, and violates the Eighth Amendment and Due Process Clause of the Constitution of the United States, that Petitioner is entitled to an individualized bond hearing, and that Petitioner is not a flight (3) that the Court order risk or danger to the community; Petitioner be released from custody; and (4) that a bond hearing 3 () be held immediately before an immigration judge. II. DISCUSSION A. Detention The Immigration and Nationality Act ( INA ) authorizes the Attorney General of the United States to issue a warrant for the arrest and detention of an alien pending a decision on whether the alien is to be removed from the United States. § 1226(a) See 8 U.S.C. ( On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States v. Kim, 538 U.S. 510, 123 S.Ct. 1708, . . . ) . 155 L.Ed.2d 724 See Demore (2003) ( Detention during removal proceedings is a constitutionally permissible part of that process. ). Once an alien s order of removal is final, the Attorney General is required to remove him or her from the United States 8 U.S.C. within a 90-day removal period. ( Except as otherwise provided in this section, ordered removed, § 1231(a) (1) (A) when an alien is the Attorney General shall remove the alien from the United States within a period of 90 days referred to as the removal period ) . ) (in this section 8 U.S.C. § 1231(a) (1) (A). This 90-day removal period begins on the latest of the following: (i) The date the order of removal becomes administratively final. judicially removal order is If the (ii) reviewed and if a court orders a stay of the removal of the alien, the date of the court s final order. 4 (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) (2) requires the DHS to detain aliens during this 90-day removal period. ( During the removal period, the alien ) . However, See 8 U.S.C. § 1231(a) (2) the Attorney General shall detain if the DHS does not remove the alien during this 90-day removal period, then § 1231(a) (6) authorizes the DHS to thereafter release or continue to detain the alien. Specifically, § 1231(a) (6) provides: An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227 (a) (1) (C) , 1227 (a) (2) , or 1227 (a) (4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3). 8 U.S.C. § 1231(a) (6) In Zadvydas v. L.Ed,2d 653 (2001), Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 the Supreme Court held that § 1231(a) (6) does not authorize the Attorney General to detain aliens indefinitely beyond the removal period, but limits an a1iens post-removal-period detention to a period reasonably necessary to bring about that alien s removal from the United States. 5 Zadvydas, at 689. 533 U.S. To guide habeas courts, the Supreme Court recognized six months as a presumptively reasonable period at 701. of post-removal period detention. once the alien After this 6-month period, provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut And for detention to remain that showing. as the period of prior postreasonable, removal confinement grows, what counts as the conversely future foreseeable reasonably 6-month This shrink. have to would presumption, of course, does not mean that every alien not removed must be released after To the contrary, an alien may be six months. been it has until confinement held in significant is no there that determined reasonably the in of removal likelihood foreseeable future. Zadvydas, 533 U.S. at 701. Petitioner s order of removal became In this case, administratively final when the BIA affirmed the order of removal 2011. on December 1, an order of removal becomes To be sure, final upon the earlier of-(i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals. 1101 (a) (47) (B) App x 610, . 611 n. 1231 (a) (1) (B) (i) Calderon-Minchola, United States v. 1 (3d Cir.2009) 8 U.S.C. . Since 8 U.S.C. § 351 Fed. § provides that the removal period begins on the date the order of removal becomes administratively final, 6 Petitioner s removal period began on December 1, 2011, when the BIA affirmed the Immigration Judge and his order of removal became administratively final. his petition on January 30, As such, 2012, when Petitioner filed he had not been detained beyond the six-month presumptively reasonable period of detention under § 1231(a) (6), as interpreted by Zadvydas. Moreover, Petitioner has made no showing whatever that there is no significant likelihood of removal in the reasonably foreseeable future. Fed. Encarnacion-Mendez v. Attorney General of U.S., App x 251, 254 (3d Cir. 2006) . 176 As the Third Circuit explained, the Once the six-month period has passed, burden is on the alien to provide [ ] good reason to believe that there is no significant the in of removal reasonably likelihood Zadvydas v. Davis, foreseeable future 533 U.S. 678, 701, 121 S.Ct. 2491, 150 L.Ed,2d Only then does the burden 653 (2001) ... shift to the Government, which must respond to rebut that with evidence sufficient showing. .. . . . Barenboy v. Attorney General of U.S., 160 Fed. App x 258, 261 n. As stated above, 8 U.S.C. § 1231(a) (1) (B) provides that (i) the removal period begins on the latest of the following: 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 In this case, the Court of Appeals court s final order... . denied Petitioner s request for a stay and as such, the relevant provision for determining the start of the removal period is § 1231 (a) (1) (B) (i). 7 2 (3d Cir. 2005) Because Petitioner does not allege facts showing that the presumptively reasonable six-month period of detention has and because Petitioner alleges no facts to indicate that expired, there is good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, as required by Zadvydas, at 701, 533 U.S. he has not shown that his detention is statutorily unauthorized or violates due process. United States, 127 Fed. Appx 79, 81 (3d , e.g., Joseph v. Cir. 2005) (affirming dismissal of § 2241 petition challenging detention pursuant to § 1231(a) (6): must provide removal, good reason 533 U.S. showing here. ); 14, 2010) at 701, Pierre v. Under Zadvydas, a petitioner to believe there is no likelihood of and Alva has failed to make that 2010 WL 1492604 Weber, (D.N.J. April (summarily dismissing § 2241 petition as premature under Zadvydas and § 1231(a) (6) where petitioner filed petition during presumptively reasonable six-month period after removal became final and failed to assert facts showing his removal is not reasonably foreseeable). This Court will dismiss the Petition for failure to assert that Petitioner is detained contrary to the laws, States the Constitution or treaties of the United 2 2 The dismissal is without prejudice to the filing of a new 2241 petition (in a new case) in the event that Petitioner can § allege facts showing that he has been detained for more than six 8 III. CONCLUSION For the reasons set forth above, the challenge to Pet±tionerrs Postremovalorder detention will be dismissed as premature Without prejudi to Petitioner filing a new petition 3 should circumstances later warrant An appropriate order follows. Dated: Dl United States Distri Judge months after his order of removal became final, and there is good ic reason to believe that there is no signif likelihood of See itioner,s removal in the reasonably foreseeable future. Pet th 11 7 F.3d 1050, 1052 ( Cir. 2002) 28 s] ( Because circumstances may ultimately change in [Petitioner l [of his habeas petition] situation, we affirm the dismissa Without prejudi to [his] ability to file a new § 2241 petition in the future ) Since the Court is dismissing the petition, Petitioners est for a stay of removal Pending this Court s final decision requ on the instant issue is dismissed as moot. Moreover, pursuant to djc over any claims 0 the REAL ID Act, this Court lacks juris rted by Petitioner which seek to challenge his underlying asse See, REAL ID Act, 8 U.S.C. § l (5) 2(a) 25 final removal order ing any other provision of law (statutory (stating Notwithstand or nonstatutory) including section 2241 of title 28, United a petition tes Code, or any Other habeas corpus provision Sta r review filed with an appropriate court of appeals in fo accordance with this section shall be the sole and exclusive means for judici review of an order of removal entered or ); etrev issued under any provision of this Act zales 414 F.3d 442, 446 n.4 (3d Cir. 2005); Calderonv Gon Holder No. 10-3398 (FSH), 2010 WL 3522092, at *2 (D.N.j. August 31, 2010) ( Therefore Petitioneris challenges to his removal (and his request for stay of removal) will be dismissed for lack of 0 jurisdic pursuant to the REAL ID Act. ) . . . 9
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