HUSEIN v. HOLDER et al
Filing
17
OPINION. Signed by Judge Faith S. Hochberg on 7/18/11. (dc, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
IBRAHIM HUSEIN,
:
Civil Action No. 10-5963 (FSH)
Petitioner,
:
v.
:
ERIC HOLDER, et al.,
Respondents.
OPINION
:
:
APPEARANCES:
Petitioner pro se
Ibrahim Husein
Essex County Correctional Fac.
354 Doremus Avenue
Newark, NJ 07105
Counsel for Respondents
Daniel Shay Kirschbaum
Asst. U.S. Attorney
970 Broad St.
Suite 700
Newark, NJ 07102
HOCHBERG, District Judge
Petitioner Ibrahim Husein, an alien currently detained at
Essex County Correctional Facility in Newark, New Jersey, has
submitted a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241.1
1
The named Respondents include U.S. Attorney
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 ... .
General Eric Holder, Essex County Correctional Facility Warden
Roy Hendricks, and various federal immigration officials.
The Respondents have moved to dismiss.
For the reasons
stated below, the Petition will be dismissed.
I.
BACKGROUND
Petitioner is a native and citizen of Jordan, who came to
the United States as a non-immigrant in 2003 and became a lawful
permanent resident in 2006.
Thereafter, Petitioner was convicted
of burglary.
On August 13, 2009, Petitioner was taken into custody by
immigration officers and was served with a Notice to Appear
before an Immigration Judge to show cause why he should not be
removed based upon a violation of Section 237(a)(2)(A)(i) of the
Immigration and Nationality Act.
On that same date, a $15,000
bond was set, which Petitioner was eligible to post to obtain his
release until a final order of removal was issued.
Petitioner
did not post bond and remained in custody.
Petitioner appeared for a removal hearing on September 14
and October 7, 2009.
On March 1, 2010, the Immigration Judge
denied Petitioner’s applications for asylum and withholding of
removal and ordered Petitioner removed.
Petitioner appealed to
the Bureau of Immigration Appeals which held, on May 5, 2010,
that it lacked jurisdiction to hear Mr. Husein’s appeal and
ordered Petitioner removed.
Petitioner filed a Motion to
2
Reconsider with the Bureau of Immigration Appeals on June 1,
2010, but did not file for a stay of removal.
As Petitioner had not filed for a stay of removal, the
Bureau of Immigration and Customs Enforcement scheduled
Petitioner for removal on June 7, 2010, but Petitioner refused to
board the aircraft.
Petitioner was then scheduled for an
escorted removal on June 29, 2010, but he again refused to board
the aircraft voluntarily.
Petitioner was again scheduled for
removal, but the BIA granted Petitioner’s motion to reconsider
and re-opened his case, so the removal was cancelled.
This undated Petition was received by this Court on November
15, 2010.
At that time, Petitioner’s motion to reconsider was
pending before the BIA.
Here, Petitioner challenges his
prolonged detention in connection with his removal proceedings.
He contends that his prolonged detention violates his rights to
procedural and substantive due process.
On January 6, 2011, while this Petition was pending, the BIA
dismissed Petitioner’s administrative appeal, denied his motion
to remand the case to the Immigration Judge, and denied his
request for a stay of removal as moot.
Petitioner has not
advised this Court of any further challenges to his removal,
either administrative or judicial, and this Court has located no
petition for review on the docket of the U.S. Court of Appeals
3
for the Third Circuit.
Accordingly, it appears that Petitioner’s
order of removal became final on January 6, 2011.
Respondents have moved for dismissal of the Petition on the
grounds that the BIA’s January 2011 decision renders this case
simultaneously moot and unripe, and, in the alternative, that
Petitioner’s pre-final-order detention was due to his own refusal
to board the planes when BICE attempted to remove him, and that
his failure to post bond prior to the issuance of a final removal
order is not actionable in habeas.
Petitioner has had an
opportunity to reply, and this matter is now ready for decision.
II.
ANALYSIS
At the time he filed this Petition, Petitioner was detained
pursuant to the discretionary detention provisions of 8 U.S.C.
§ 1226(a).
He had been granted, but had not posted, release on a
$15,000 bond.
During the pendency of this proceeding, however,
on January 6, 2011, Petitioner’s order of removal became final.
Because a final order of removal has been issued against
Petitioner, he is no longer detained pursuant to § 1226(a), which
governs only detention prior to the entry of a final order of
removal.
Instead, Petitioner is now detained pursuant to 8
U.S.C. § 1231(a), which governs the detention and removal of an
alien subject to a final order of removal.
Because Petitioner is no longer detained pursuant to
§ 1226(a), as he was at the time he filed this Petition, the
4
challenge to his pre-removal order detention has become moot.
As
there is no longer a live “case or controversy” regarding
Petitioner’s pre-removal order detention, see U.S. Constitution,
Article III, this Petition must be dismissed, insofar as it
challenges Petitioner’s detention prior to his removal order
becoming final.
See De La Teja v. United States, 321 F.3d 1357,
1361-63 (11th Cir. 2003).2
Section 1231(a)(2), pursuant to which Petitioner is now
detained, requires the detention of aliens ordered removed during
the 90-day removal period, defined, as relevant here, as the 90day period beginning on the date the order of removal becomes
administratively final.
See 28 U.S.C. § 1231(a)(1)(B)(i).
Section 1231(a)(6) permits continued detention if removal is not
effected within 90 days.
However, detention beyond the end of
the 90-day removal period is governed by the constitutional
principles set forth by the Supreme Court in Zadvydas v. Davis,
533 U.S. 678 (2001).
The Supreme Court has held that such post-
removal-order detention is subject to a temporal reasonableness
standard.
Specifically, once a presumptively-reasonable six-
month period of post-removal-order detention has passed, a
2
As noted by the Court of Appeals for the Eleventh Circuit
in De La Teja, 321 F.3d at 1363, because Petitioner is now
subject to a final order of removal, he will not be subject to
pre-removal order detention in the future, so the narrow
exception for cases that are capable of repetition yet evading
review can not apply here.
5
detained alien must be released if he can establish that his
removal is not reasonably foreseeable.
See Zadvydas v. Davis,
533 U.S. 678 (2001); Clark v. Martinez, 543 U.S. 371 (2005).
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, 533 U.S. at 699-701.
As Petitioner had not been detained, at all, under § 1231(a)
at the time this Petition was filed, this Court does not construe
the Petition as asserting a challenge to Petitioner’s detention
following the issuance of the final order of removal.
In any
event, any challenge to Petitioner’s post-removal order detention
is premature.
As of the date the Petition was filed, the
applicable removal period had not yet begun to run.
See, e.g.,
28 U.S.C. § 1231(a)(1)(B)(iii); Gregory v. B.I.C.E./D.H.S., Civil
Action No. 06-4008 (SDW), 2007 WL 708856 (March 6, 2007) (removal
period begins anew upon the happening of any of the events
described in § 1231(a)(1)(B)); Michel v. INS, 119 F.Supp.2d 485,
498 (M.D. Pa. 2000) (same).
To state a claim under Zadvydas, the
six-month presumptively-reasonable removal period must have
expired at the time the Petition is filed; a prematurely filed
petition must be dismissed without prejudice to the filing of a
new Petition once the removal period has expired.
6
See, e.g.,
Akinvale v. Ashcroft, 287 F.3d 1050, 1051 (11th cir. 2002); Fahim
v. Ashcroft, 227 F.Supp.2d 1359, 1363 (N.D. Ga. 2002); Monpremier
v. Chertoff, 2007 WL 909575 (N.D. Fla. March 21, 2007).
Thus,
any challenge to Petitioner’s post-removal order detention is not
yet ripe and must be dismissed without prejudice.
See, e.g.,
Ferrer-chacon v. Department of Homeland Security, 2006 WL 3392930
(D.N.J. 2006).
Finally, to the extent this Court could address the
propriety of the government’s post-removal-order detention of
Petitioner, the Court notes that Petitioner has presented no
evidence, whatsoever, that there is no significant likelihood of
his removal in the reasonably foreseeable future.
To the
contrary, there is no dispute that the government has thrice
scheduled Petitioner’s removal, and that the removals were twice
thwarted only by Petitioner’s refusal to board the airplane.
The
third scheduled removal was cancelled to permit Petitioner to
remain in the United States during the pendency of his
administrative appeal.
Petitioner’s bald allegation that
removals to Jordan are presently “restricted” and that removal to
an alternate country is “highly unlikely,” see Petition at 7, are
completely unsupported by any evidence.
7
Thus, there is no
evidence to suggest that Petitioner could not be removed to
Jordan.3
III.
CONCLUSION
For the reasons set forth above, the Petition will be
dismissed.
An appropriate order follows.
S/ Faith s. Hochberg
Faith S. Hochberg
United States District Judge
Dated: July 18, 2011
3
Federal courts have recognized that “Zadvydas does not
save an alien who fails to provide requested documentation to
effectuate his removal. The reason is self-evident: the detainee
cannot convincingly argue that there is no significant likelihood
of removal in the reasonably foreseeable future if the detainee
controls the clock.” Pelich v. INS, 329 F.3d 1057, 1060 (9th
Cir. 2003) (cited with approval in U.S. ex rel. Kovalev v.
Ashcroft, 71 Fed.Appx. 919, 924 (3d Cir. 2003).
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