WILSON v. HENDRICKS et al, No. 2:2012cv07315 - Document 12 (D.N.J. 2013)
Court Description: Memorandum OPINION and ORDER REOPENING CASE for the purpose of entry of this Memorandum Opinion & Order; that the Petition, ECF No. 1, is dismissed. Such dismissal is without prejudice to Petitioner's filing a new §2241 petition if and when his Zadvydas claim ripens;, etc. Signed by Judge Kevin McNulty on 5/8/13. (jd, )
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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY R. WILSON, Civil Action No. 12-7315 (KM) Petitioner, ROY L. MEMORANDUM OPINION AND ORDER : V. Dockets.Justia.com ROMAN G. HENDRICKS et al., Respondents. It appearing that: 1. This matter was opened upon the Clerk’s receipt of Petitioner’s application habeas corpus, (the “Petition”) pursuant to 28 U.S.C. for a writ of § 2241 (ECF No. 1). At Petitioner asserted that his detention in the that time, hands of immigration officials was unduly prolonged and that therefore he was entitled to a bond hearing before the immigration judge or before me. 2. Construing the Petition as an application asserting challenges under Diop v. 233 (3d Cir. 2011), ICE/Homeland Sec., I took notice of Petitioner’s petition for review of his order of removal, before the Court of Appeals, Wilson v. Attorney General, a decision (ECF. No. 656 F.3d 221, 5) which was then pending which had stayed removal. No. 12-2271 (3d Cir.) I issued in which I found no current basis Page -1- for habeas relief. I directed the Clerk to administratively terminate this matter without prejudice to reopening it in light of future developments. 3. By decision dated February 27, Petitioner’s challenge 2013, to his removal was dismissed by the Court of Appeals. Wilson v. Holder, No. 11. No. 12-2771 27, Feb. (3d Cir. 2013); see also ECF and The deadlines for further review have expired, 2013. the mandate issued on April 22, Court of Appeals’ Consequently, the stay of removal pending appeal has expired. 4. Any renewed habeas challenge to detention would be examined under 8 U.S.C. U.S. 678 (2001) § 1231(a) (1) (A) .‘ and Zadvydas v. Davis, Section 1231(a) (1) (A) 533 provides that the government has a 90-day “removal period” to remove an alien who is subject to an order of removal from the United States. Detention during the removal period under Section Diop v. ICE/Homeland Sec., 656 F.3d 221, governs habeas claims of pre-removal-period detainees, while Zadvydas v. Davis, 533 U.S. 678, governs habeas claims of the aliens held in and, The “removal period” starts removal-period detention. on the then-latest of re-starts upon superceding developments, the following: (1) the date when the order of removal becomes administratively final (that is, appeal to Board of Immigration Appeals was either ruled upon by the BIA or the time to appeal to the BIA expired); or (2) if the removal order is judicially reviewed and if a court orders a stay of the removal, the date of the court’s final order, or (3) if the alien is detained or confined (except under an immigration process), the date the See 8 U.S.C. § alien is released from confinement. 1231(a) (1) (B) - - Page -2- 1231 (a) (1) (A) is mandatory. 1231 (a) (1) (C) provides that the removal period shall be extended, In addition Section and the alien may remain in detention during such extended period, if the alien “acts to prevent the alien’s removal subject to an order of removal.” 1231 (a) (1) (c) Here, . 8 U.S.C. § Petitioner’s 90-day removal period was re-triggered when the Court of Appeals dismissed his challenge to removal and lifted stay. 1231(a) (1) (B). 1231 (a) (1) (A) The reore, 8 U.S.C. § heis currey held in Section mandatory detention, and I cannot currently grant him habeas relief. 5. If the alien is not deported during the 90-day removal period, the government may thereafter further detain him or release him subject to conditions of release. 1231 (a) (6). However, in Zadvydas, ic § the Supreme Court held that aliens may be detained further under § 1231(a) (6) only for “a period reasonably necessary to bring about that alien’s removal from the United States.” 533 U.S. at 689. The Court set six months as a “presumptively reasonable period of detention.” period has run, at 700-01. Once that six month the alien may be released if “the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.” Id. at 701. Page -3- 6. If Petitioner cooperates with the immigration authorities but is not removed to his native Jamaica within six months, and if there is no significant likelihood of his removal to Jamaica in the reasonably foreseeable future, he may challenge his detention in a new § 2241 petition. IT IS THEREFORE this 8th day of May, 2013, ORDERED that the Clerk shall reopen this matter by making a new and separate entry on the docket, REOPENED” Order; reading “CIVIL CASE for the purpose of entry of this Memorandum Opinion and and it is further ORDERED that the Petition, ECF No. 1, is dismissed. Such dismissal is without prejudice to Petitioner’s filing a new § 2241 petition if and when his Zadvydas claim ripens; and it is further ORDERED that the Clerk shall serve this Memorandum Opinion and Order upon Respondents by means of electronic delivery; and it is finally ORDERED that the Clerk shall serve this Memorandum Opinion and Order upon Petitioner by regular U.S. mail and close the file on this matter. / rJ Kevin McNulty United States District (içe Page -4-
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