CONCEICAO v. HOLDER et al

Filing 17

OPINION. Signed by Judge Claire C. Cecchi on 1/25/2012. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

EDSON DA CRUZ CONCEICAO,

11-4119

Civil Action No.

(CCC)

Petitioner,
OPINION

:

v.
ERIC H.

JR.,

HOLDER,

et al.,

Respondents.

APPEARANCES:
EDSON DA CRUZ CONCEICAO, Petitioner pro se
J#20J—003768
c#384—504 DORM #3
Essex County Correctional Facility
354 DOREMUS AVE.
Newark, New Jersey 07105
PETER G. O’MALLEY, Counsel for Respondents
Office of the U.S. Attorney
970 Broad Street
Suite 700
Newark, New Jersey 07102
CECCHI,

District Judge
Edson

Petitioner,
currently
(“DHS”),

being

detained by

Cruz
the

from

the

Facility

United

of

Department

in Newark,

States.

is

Conceicao(”Petitioner”),

Immigration and Customs Enforcement

County Correctional
removal

Da

On

New
or

Homeland

(“ICE”)
Jersey,

about

Security

at the Essex
pending

July

18,

his

2011,

under 28
Petitioner filed this Petition for Writ of Habeas Corpus
al
U.S.C. § 2241, in which he challenges his detention pending remov

as unconstitutional.
Holder,

Jr.,

Roy L.

Petitioner brings this action against Eric
Hendricks,

and Kimberly Zanotti

referred to as “Respondents” or the “Government”)
Based

Petitioner’s

upon

application to proceed
granted.

affidavit

of

(hereinafter

in this action.

indigence,

Petitioner’s

forma pauperis in this action is hereby

For the reasons stated below,

this petition for habeas

relief will be denied.
I. BACKGROUND

Petitioner is a native and citizen of Brazil who entered the
United States
(Resp’t Ans.,
1,

Ex.

1-94

on a visitor’s

visa on or about November

6,

1999.

Declaration of Peter G. Q’Malley (“O’Malley Decl.”),
Arrival

Record.)

On

June

9,

2008,

Petitioner

was

arrested in Fairview,

New Jersey,

for theft of movable property.

(O’Malley

Decl.,

2,

arrest

September

3,

that charge.
or

about

2009,

Petitioner was

September

Deportable

for

9,

a visa

Alien.)

application

Pet’r’s

(O’Malley Decl,

removability as

Appi.

Ex.

2009,

convicted and

January

On

Petitioner

about

incarcerated on

was

charged

(O’Malley Decl.,
6,

(O’Mailey

or

Inmate Database Search.)

3,

overstay.

On

asylum.

Ex.

record.)

2010,
Decl.,

Ex.

Ex.

for Asylum and Withholding of Removal.)

5,

with

1-589

R.

of

filed

Petitioner

4,

On

an

Partial

On August 5,

2010,

an immigration judge found that Petitioner’s asylum application was
untimely,
6,

and ordered him removed to Brazil.

(O’Malley Decl.,

Order and Oral Decision of the Immigration Judge.)

Ex.

On October

19,

the

2010,

Appeals

affirmed by the

appeal

Ex.

8,

Board

of

Immigration

7,

BIA

Decision.)

Ex.

to the Third Circuit Court

dismissed on June 30, 2011,
Decl.,

Decl.,

(O’Malley

(“BIA”).

Petitioner’s

was

order

of Appeals was
(O’Malley

for failure to prosecute.

On November 11,

Order of the Court of Appeals.)

2010, Petitioner was served with a Warning for Failure to Depart,
advising him of his obligation to cooperate with ICE in removal
efforts, including his obligation to apply for travel documents and
(O’Malley

comply with instructions from his consulate or embassy.
Decl., Ex. 9, Warning for Failure to Depart.)

On April 23, 2011,

Petitioner was served with a Decision to Continue Detention,

in

which he was advised that his removal to Brazil was expected in the
reasonably foreseeable future, and therefore he would be kept in
detention pending removal.

(O’Malley Decl,

Ex.

10,

Decision to

Continue Detention.)
On July 26, 2011, ICE officials completed a post—order custody
review on Petitioner,
Brazil

was

Petitioner

and determined that,

expected

in

not

be

would

the

reasonably

released.

since his removal to
foreseeable

(O’Malley

Decl.,

future,
Ex.

11,

post-order custody review worksheet; Ex. 12, Decision to Continue
Detention.)

Petitioner was again informed of his obligation to

assist in removal efforts, which he refused to sign.
Ex. 13, Warning for Failure to Depart.)
review was conducted on Petitioner,

3

(O’Malley,

Another post-order custody
resulting in a decision to

continue detention because of Petitioner’s refusal to sign for a
travel

Consulate

2011.

2,

August

on

14, post-order custody review worksheet.)

(O’Malley Dccl., Ex.

On

Petitioner was served with a Notice of Failure

2011,

September 13,

Brazilian

the

at

document

2011,

to Comply and on September 15,

he was again advised of his

(O’Malley Decl., Ex. 15 & 16, Warning for

obligation to cooperate.
Failure to Depart.)

Petition for Writ of Habeas Corpus under 28 U.S.C.

In his

§

2241, Petitioner argues that during his twenty-two month detention,
he

has

never
is

detention
(Docket

had

which

warranted,

Entry No.

his

September

that

“because

other documents necessary to
removal,’

[his]

‘extended’

29,

process

due

2011,

Petitioner

rights.

Respondents

filed

‘fail[ed]

has

departure,’ and has

removal

(Docket Entry No.

.“

the

period

or

Petitioner

record,”

relying

on

holding in Diop v.
(Docket Entry No.

ICE/Homeland Sec.,
8,)

be

‘act[ed]

to

viewed

as

See 8 U.S.C.

§

6.)

Answer,

to

should

of the INA.

the

response

supplement

his

[his]

under section 241(a) (1) (C)

1231 (a) (1) (C)
In

violates

whether prolonged

to make timely application in good faith for travel or

refus[ed]

prevent

determine

On

1.)

arguing

their Answer,

to

bond hearing

a

the

filed

Third

a

“motion

to

Circuit’s

recent

(3d Cir.

2011).

656 F.3d 221

Respondents then filed a letter,

contending

that Diop dealt with the length of time during which an alien in
removal proceedings may be held in detention, which has no bearing

on the

instant

order.

case because

(Docket Entry No.

Petitioner

7.)

is

under a

final

removal

Petitioner filed another document,

also relying on the Diop holding.

(Docket Entry No.

He then

9.)

filed two documents seemingly requesting “prosecutorial discretion”
pursuant to an internal ICE policy memorandum.
10 & 11.)
memo

(Docket Entry Nos.

Respondents filed a letter in response,

setting

guidelines

administration

of

the

for

the

exercise

Immigration

and

of

arguing that a

discretion

Nationality

Act

implementing regulations is directed to agency personnel,
no bearing at present on Petitioner’s case.

in

the

and

its

and has

(Docket Entry No.

13.)

Finally, on January 6, 2012, Petitioner filed an “Application!
Petition for an emergency stay of removal.”
Respondents’

letter

in response

argues

(Docket Entry No.

that

this

Court

14.)

does

not

have jurisdiction to entertain such an application because Congress
revised 8 U.S.C.

§ 1252 (a) (5)

to state,

in relevant part,

that “a

petition for review filed with an appropriate court of appeals in
accordance with this section shall be the sole and exclusive means
for

judicial

1252(a)(5).

review of an order
(Docket Entry No.

of

removal

.
.

.“

.

8

U.S.C.

§

15.)

II. DISCUSSION
A.

Legal Standard

As stated earlier,
28 U.S.C.
“he

is

in

petitioner brings this habeas action under

§ 2241(c) (3), which requires the petitioner to show that
custody

in

violation

of

5

the

Constitution

or

laws

or

treaties of the United States.”
has

subject

matter

28 U.S.C. § 2241(c) (3)

jurisdiction

over

this

The Court

*

Petition

because

Petitioner is being detained within its jurisdiction at the time he
filed

his

petition,

because

detention

continued

and
is

not

Petitioner

statutorily

asserts

that

his

and

is

authorized

constitutionally impermissible because it violates due process.
A pro se pleading is held to

less

stringent

standards than

more formal pleadings drafted by lawyers.

Estelle v.

429

404

97,

U.S.

(1972)

106

(1976);

Haines

v.

Kerner,

U.S.

Gamble,
519,

520

A pro se habeas petition and any supporting submissions

.

must be construed liberally and with a measure of tolerance.
Royce v. Hahn,
878

General,
Brierley,

151 F’.3d 116,
F.2d

714,

414 F,2d 552,

118

721—22
555

(3d Cir.
(3d Cir.

(3d Cir.

1998); Lewis v. Attorney
1989);

United

States

v,

1969)

B. Analysis
1.

Prolonged Detention
Petitioner

bond

hearing

contends

is

that

unlawful

his

and

prolonged

a

violation

procedural and substantive due process.

detention without

of

his

rights

§

Section

attempt

effectuate

removal

requires
within

a

the

Attorney

ninety

day

General
“removal

to

1231(a).

period.”

removal period begins on the latest of the following:
The
(i)
date
the
administratively final.

order

6

of

to

The detention of an alien

who has been ordered removed is governed by 8 U.S.C.
1231(a) (1)

a

removal

becomes

to
The

(ii) If the removal order is judicially reviewed and if
a court orders a stay of the removal of the alien, the
s
t
date of the court 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.
§ 1231 (a) (1) (B).

8 U.S.C.

Section 1231 (a) (6)

permits continued detention if removal is

not effected within ninety days.

However, interpreting the statute

to avoid any question of a due process violation, the Supreme Court
has

a

once

Specifically,

standard.

reasonableness

temporal

a

to

subject

is

detention

such

that

held

presumptively

reasonable six month period of detention has passed following the
a detained alien must be released if

issuance of a removal order,

he can establish that his removal is not reasonably foreseeable.
533 U.S.

See Zadvydas v. Davis,
U.S.

371

(2005)

.

the

Thus,

(2001); Clark v. Martinez,

678

the

bears

alien

543

burden

initial

of

establishing that there is “good reason to believe that there is no
significant

likelihood

of

removal

in

reasonably foreseeable

the

future,” after which the government must come forward with evidence
Zadvydas,

to rebut that showing.
However,
period

of

“[t]he

[ninety]

removal
days

and

533 U.S. at 699-701.

period
the

shall

alien

be

extended

remain

may

beyond

a

detention

in

during such extended period if the alien fails or refuses to make
timely

application

in good

faith

for

travel

or

documents

other

necessary to the alienvs departure or conspires or acts to prevent
the alien’s

removal

subject

to an order
7

of

removal.”

8

U.S.C.

§

1231 (a) (1) (C)

Federal courts have recognized that “Zadvydas does

.

not save an alien who fails to provide requested documentation to
effectuate his removal.

the detainee

The reason is self—evident:

cannot convincingly argue that there is no significant likelihood
of

foreseeable

reasonably

in the

removal

Pelich v.

controls the clock.”

INS,

future

if the detainee

329 F.3d 1057,

1060

(9th Cir.

(cited with approval in U.S. ex rel. Kovalev v. Ashcroft,

2003)

919,

Fed. Appx.

924

(3d Cir.

71

2003)

Respondents assert in their brief that Petitioner has failed
to cooperate, and that his continued detention is therefore lawful.
Specifically,

On August 2,

Brazil.

contend that
necessary

documents

travel

the

sign

Respondents

once

Petitioner is

to

him

allow

refusing to

to

return

to

Petitioner was taken to the Brazilian

2011,

he

there,

refused

sign

to

the

necessary

Consulate,

but

paperwork.

Petitioner has been advised in the “Notice of Failure

to

Comply,”

that

he

would

remain

in

ICE

custody because

of

his

refusal to sign the necessary travel documents.

(O’Malley Decl.,

Petitioner has not denied Respondents’

claims about his

Ex.

15.)

refusal to sign the documents.
In a situation such as this,

where Petitioner was brought to

the Brazilian Consulate to sign the necessary paperwork but refused
to

do

failed,
his

so,

he

has

failed to

cooperate

in his

removal

and he

has

in this Court, to establish that there is no likelihood of

removal

in

the

reasonably

foreseeable

8

future,

There

is

no

statutory or due process violation in his continued detention as of
However, as Respondents acknowledge, repatriation is a

this time.

Therefore,

shared responsibility of the government and the alien.
is

petition

the

renewed

a

consider

denied

full

after

if,

relief

for

application

shall

Court

This

prejudice.

without

cooperation from Petitioner in meeting the government’s clearly
unable

remains

government

the

requirements,

articulated

to

for

An

effectuate Petitioner’s removal.
2.

Stay of Removal Proceedings
January

On

6,

a

“Motion

(Pet’r’s Mot. Stay, Docket Entry No.

Emergency Stay of Removal.”
14.)

filed

Petitioner

2012,

Petitioner requests that this Court “grant a Stay to have his

appeal

on

decided

the

(ith..

merits.”

at

2.)

In

response,

Respondents argue that “Congress revised 8 U.S.C. § 1252 (a) (5) to
state, in relevant part, that ‘a petition for review filed with an
appropriate court of appeals in accordance with this section shall
be the sole and exclusive means for judicial review of an order of
removal

.

.

.

.‘

8 U.S.C. § 1252 (a) (5)

.

.

.

Since the REAL ID Act

deprives district courts of jurisdiction over orders of removal, it
thus

deprives

removal order.”

this

Court

of

jurisdiction to

stay

Petitioner’s

(Resp’ts’ Jan. 10, 2012 Ltr. 2, Docket Entry No.

15.)
It

is

unclear

what

“appeal”

Petitioner

“Motion for An Emergency Stay of Removal.”

9

refers

to

in

his

On June 30, 2011, the

Third Circuit dismissed his appeal of the BIA’s decision and as far
as this Court is aware, he does not have any other appeals pending.
Further, pursuant to the REAL ID Act, this Court lacks jurisdiction
over any claims asserted by Petitioner which seek to challenge his
REAL

See,

order.

removal

final

underlying

Act,

ID

U.S.C.

8

§

1252 (a) (5)
The

(statutory

law

of

provision

United States Code,

2241 of title 28,
provision

including

other

section

or any other habeas corpus

a petition for review filed with an appropriate

.

.

.

nonstatutory),

or

any

“[n]otwithstanding

that

states

Act

IC

REAL

court of appeals in accordance with this section shall be the sole
and

exclusive

for

means

of

review

judicial

order

an

entered or issued under any provision of this Act.
§

1252 (a) (5)

this

Though

.

does

Court

(3d Cir.
at *2
his

Calderon v.

2005) ;

No.

Holder,

over

challenging his
F.3d 442,

414

10—3398,

it

final

446 n.4

2010 WL 3522092,

(D.N,J. Aug. 31, 2010) (dismissing petitioner!s challenges to
removal

jurisdiction,
Clancy,

No.

his

request

pursuant

to

and

11—5942,

2011

2011) (“Any challenge that
here

Gonzales,

Bonhometre v.

8 U.S.C.

as discussed above,

jurisdiction over his claims

order of removal.

.“

.

removal

jurisdiction

retain

Petitioner’s challenges to his detention,
does not have

.

of

with

regard

to

BIA’s

the
WL

for

stay

REAL

ID

5288590,

of

of

Gallego-Gomez

Act);
at

lack

v.

Nov.

2,

removal

*

2

for

(D,N.J,

Petitioner may be attempting to assert
decision

10

affirming

the

removal

order

issued against him,
must

filed

be

including his request for a stay of removal,

with

the

appropriate

United

States

Court

of

Therefore, Petitioner’s motion for a stay of removal is

Appeals.”)

dismissed without prejudice.

Petitioner may raise

this

request

before the Court of Appeals.’
3. Medical Issues
In his second “request for official exercise of discretion,”
Petitioner

outlines

affecting him.
1,

several

medical

(Pet’r’s Dec.

Docket Entry No.

11.)

23,

issues

2011 Ltr.

that

are

Requesting Discretion

He states that he is not receiving the

appropriate medical care needed to address these issues.
To

the

confinement,
action.

extent

challenges

his

(Id.)

conditions

of

such claims must be raised by way of a civil rights

See Leamer v.

also Ganim v.

prisoner

a

currently

Fauver,

288 F.3d 532

Federal Bureau of Prisons,

WL 1539942 (3d Cir. 2007)

(3d Cir.

2002).

235 Fed. Appx.

882,

See
2007

(challenge to garden-variety transfer not

cognizable in habeas); Castillo v. FBOP FCI Fort Dix, 221 Fed.Appx.
172,

2007 WL 1031279

(3d Cir.

2007)

(habeas is proper vehicle to

challenge disciplinary proceeding resulting in loss of good-time

This
1 Court declines to transfer Petitioner’s action because it would
not be in the interests of justice, as Petitioner already had an appeal of his
final removal order dismissed by the Third Circuit for failure to prosecute.
See 28 U.S.C. § 1631 (If
a civil action is filed in a court that lacks
jurisdiction, “the court shall, if it is in the interest of justice, transfer
such action
to any other such court in which the action
could have
been brought at the time it was filed.”>
...

...

11

credits,

sanctioned

regarding

claims

but

of

loss

and

phone

visitation privileges not cognizable in habeas)
Here,

Petitioner’s

to

challenge

any medical

issues must

be

tory
brought by way of a civil rights action or action for declara
and

injunctive

Therefore,

relief.

Petitioner

claims by filing a civil rights complaint,
completed application
expresses

no

opinion

may

pursue

along with a properly

to proceed j forma pauperis.
as

to

the

merits

of

these

This

Petitioner’s

Court

medical

claims.
CONCLUSION

III.

For

the

reasons

stated

above,

without prejudice at this time.
Dated:

the

Petition

will

be

denied

An appropriate order follows.

Z101

CLAIRE C. CECCHI
United States District Judge

12