WILSON v. HENDRICKS et al
Filing
12
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, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROMAN G.
R.
WILSON,
Civil Action No.
12-7315 (KM)
Petitioner,
ROY L.
MEMORANDUM OPINION
AND ORDER
:
V.
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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