MONROY v. HOLDER et al, No. 2:2013cv00144 - Document 16 (D.N.J. 2013)
Court Description: OPINION. Signed by Judge Stanley R. Chesler on 11/26/13. (DD, )
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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ____________________________________ : JAVIER ALVAREZ MONROY, : Civil Action No. 13-0144 (SRC) Petitioner, : v. : ERIC H. HOLDER, et al., : OPINION Respondents. ____________________________________: CHESLER, District Judge: This matter comes before the Court upon Petitioner s filing of a § 2241 petition ( Petition ) and submission of the filing fee. See ECF No. 1. Since, at the time of Petitioner s commencement of this matter, Petitioner was subject to a final order of removal, the Petition challenged Petitioner s detention under the removal-period statute, 8 U.S.C. § 1231(a), and Zadvydas v. Davis, 533 U.S. 678 (2001). See ECF No. 1. However, on November 1, 2013, the Clerk received a letter from Petitioner informing the Court that, after this matter had been commenced, the Court of Appeals for the Second Circuit, granted Petitioner s motion for stay of removal. See ECF No. 15; see also Alvarez-Monroy v. Holder, USCA No. 12-2749, ECF dated Oct. 10, 2013 (2d Cir., filed July 12, 2012). Thus, Petitioner s order of removal is no longer final. See 8 U.S.C. § 1231(a). Since the factual predicate supporting Petitioner s § 1231 and Zadvydas challenges is no longer present, there is no longer a live case or controversy regarding the claim he raised here. See U.S. Constitution, Article III. Therefore, that claim should 1 be dismissed as moot. See Rodney v. Mukasey, 340 F. App x 761 (3d Cir. 2009); De La Teja v. United States, 321 F.3d 1357, 1361-63 (11th Cir. 2003); Reyna v. Hendricks, Civil No. 12-2665, 2012 U.S. Dist. LEXIS 181461, 2012 WL 6697464 (D.N.J. Dec. 21, 2012). 1 An appropriate Order follows. _____/s/__________________ Stanley R. Chesler United States District Judge Dated: November 26, 2013 If Petitioner s removal order is finalized a second time, and he may again raise a § 1231 and Zadvydas challenge in a new § 2241 petition. To the extent Petitioner might eventually wish to challenge his current classification and/or his pre-removal-order detention, those challenges should be raised in a new § 2241 petition properly asserting his grounds for relief and seeking the appropriate remedy. See Diop v. ICE/ Homeland Sec., 656 F.3d 221, 230-31 (3d Cir. 2011); see also Harris v. Herrey, No. 13-4365, 2013 U.S. Dist. LEXIS 104841, at *5 n.3 (D.N.J. July 26, 2013) ( A district court s power to entertain habeas . . . claims raised by pre-removal-order alien detainees [is] limited to a directive of a bond hearing as opposed to an order of release ) (citations, original brackets and ellipses omitted); accord 28 U.S.C. § 2254 Rule 2(e) (applicable to § 2241 matters through Habeas Rule 1(b)) (a habeas petitioner cannot challenge different determinations in a single habeas petition). 1 2
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