MONROY v. HOLDER et al
Filing
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OPINION. Signed by Judge Stanley R. Chesler on 11/26/13. (DD, )
NOT FOR PUBLICATION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
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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).
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