DE LA CRUZ V TSOUKARIS, et al
Filing
3
OPINION AND ORDER that the Petition is dismissed as to all Respondents except for petitioner's Warden Orlando Rodriguez. The Court's determination as to Petitioner's challenges raised against his warden is reserved. The Clerk shall st ay this matter subject to reopening upon the Court of Appeals' resolution of the claims presented in Sylvain v. Holder, U.S.C.A. Index No. 11-3357, by entering a new & separate entry on the docket reading, "CIVIL ACTION STAYED." The cl erk shall mark this case ADMINISTRATIVELY TERMINATED. Petitioner's motion (D.E. No. 2) is denied to renewal in the event Petitioner elects to file an amended pleading upon the Court of Appeals' resolution of the issue; etc. Signed by Judge Esther Salas on 4/2/13. (sr, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________
:
JOSE DE LA CRUZ,
:
:
Petitioner,
:
:
Civil Action No. 13-1650 (ES)
v.
:
:
ORDER
JOHN TSOUKARIS et al.,
:
:
Respondents.
:
_________________________:
IT APPEARING THAT:
Petitioner Jose De La Cruz, a pre-removal-order alien
detainee, filed a Petition for a Writ of Habeas Corpus
(“Petition”) pursuant to 28 U.S.C. § 2241, challenging his
detention.
See D.E. No. 1.
unlawfully
held
erroneous
interpretation
provision
in
contained
custody
in
§
Petitioner claims that he is
as
of
a
result
the
236(c)
of
of
Respondents’
mandatory
the
detention
Immigration
and
Nationality Act (“INA”), codified as 8 U.S.C. § 1226(c).1
The case law accumulated, at this juncture, at the
district court level of this Circuit is inconclusive as to
the issue raised by Petitioner.
Compare, e.g., Kerr v.
Elwood, No. 12-6330, 2012 U.S. Dist. LEXIS 160250 (D.N.J.
1
Since the only proper respondent to a petition for a writ of habeas
corpus is the warden of the facility where the prisoner is being held,
see Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004)(“The federal habeas
statute straightforwardly provides that the proper respondent to a
habeas
petition
is
‘the
person
who
has
custody
over
[the
petitioner’]”), the Petition will be dismissed as to all Respondents
except for the warden.
Nov. 8, 2012); Charles v. Shanahan, No. 12-4160, 2012 U.S.
Dist.
LEXIS
Hendricks,
145072
No.
(D.N.J.
12-2755,
Oct.
2012
9,
U.S.
2012);
Dist.
Kporlor
LEXIS
v.
145387
(D.N.J. Oct. 9, 2012); Campbell v. Elwood, No. 12-4726,
2012 U.S. Dist. LEXIS 139203 (D.N.J. Sept. 27, 2012), with,
e.g., Espinoza-Loor v. Holder, No. 12-4160, 2012 U.S. Dist.
LEXIS 91307 (D.N.J. July 2, 2012); Diaz v. Muller, No. 114029, 2011 U.S. Dist. LEXIS 85971 (D.N.J. Aug. 4, 2011);
Desrosiers v. Hendricks, No. 11-4643, 2011 U.S. Dist. LEXIS
154971
(D.N.J.
Dec.
30,
2011).
have been offered by both sides.
Non-frivolous
arguments
See, e.g., Martinez v.
Muller, No. 12-1731, 2012 U.S. Dist. LEXIS 138476, at *16
(D.N.J. Sept. 25, 2012) (granting writ but noting that “the
arguments that Respondents have advanced in response to the
instant petition are not meritless”); Burns v. Weber, No.
09-5119, 2010 U.S. Dist. LEXIS 3756, at *19 (D.N.J. Jan.
19, 2010) (“The fact that [some courts have] disagreed with
the BIA’s interpretation of the relevant statute does not
render Respondents' position in this matter substantially
unjustified.”); Hyung Woo Park v. Hendricks, No. 09-4909,
2009 U.S. Dist. LEXIS 106153, at *20 (D.N.J. Nov. 12, 2009)
(same).
The case law accumulated at the circuit level suggests
that Petitioner's challenges might be without merit.
2
For
instance, while the Court of Appeals for the First Circuit
noted, in dictum, that such challenges might merit habeas
relief, see Saysana v. Gillen, 590 F.3d 7, 13 (1st Cir.
2009)
(observing,
albeit
in
a
different
context,
that
“[t]he statutory language embodies the judgment of Congress
that
such
an
individual
should
not
be
returned
to
the
community pending disposition of his removal proceedings”),
but the Court of Appeals for the Fourth Circuit found that
the “when the alien is released” language was ambiguous,
and held that detention pursuant to § 1226(c) does not
require the Government to act immediately upon a criminal
alien's release.
See Hosh v. Lucero, 680 F.3d 375, 384
(4th Cir. 2012) (concluding “that the BIA’s interpretation
of § 1226(c) . . . was reasonable, and must be accorded
deference”).
The Court of Appeals for the Third Circuit is yet to
rule
on
the
proper
interpretation
of
the
mandatory
detention statute. In fact, the issue of how the “when the
alien
is
released”
language
of
§
1226(c)
should
be
interpreted is currently pending before the Third Circuit.
See Sylvain v. Holder, U.S.C.A. Index No. 11-3357 (3d Cir.
docketed Aug. 31, 2011).2
2
Oral arguments in Sylvain v. Holder, U.S.C.A. Index No. 11-3357, were
held on March 19, 2013.
3
Since conclusive appellate guidance as to the issues
raised
in
the
Petition
appears
forthcoming,
this
Court
finds it prudent to stay the proceedings at bar in order to
allow Petitioner an opportunity to: (a) assess the Court of
Appeals' decision, once it is entered; and (b) amend his
Petition
in
accordance
with
the
holding
reached
by
the
to
all
Court of Appeals, if Petitioner so elects.
IT IS, therefore on this 2nd day of April, 2013,
ORDERED
Respondents
that
the
except
Petition
for
is
dismissed
Petitioner’s
as
warden
Orlando
Rodriguez; and it is further
ORDERED
Petitioner’s
that
the
challenges
Court’s
raised
determination
against
his
as
to
warden
is
reserved; and it is further
ORDERED the Clerk shall stay this matter, subject to
reopening
upon
the
Court
of
Appeals'
resolution
of
the
claims presented in Sylvain v. Holder, U.S.C.A. Index No.
11-3357, by entering a new and separate entry on the docket
reading, “CIVIL ACTION STAYED;” and it is further
ORDERED
that
the
Clerk
ADMINISTRATIVELY TERMINATED.3
shall
mark
this
case
The Court stresses that an
3
The courts agree that “an administrative closing has no effect other
than to remove a case from the court's active docket and permit the
transfer of records associated with the case to an appropriate storage
repository.”
Lehman v. Revolution Portfolio LLC, 166 F.3d 389, 392
(1st Cir. 1999); see also Mire v. Full Spectrum Lending Inc., 389 F.3d
4
administrative termination is not a dismissal on merits,
and this Court does not withdraw its jurisdiction over this
matter.
See Green Tree Fin. Corp.-Alabama v. Randolph, 531
U.S. 79, 87, n.2 (2000) (citing 9 U.S.C. § 16(b)(1) for the
observation that, where a “District Court enter[s] a stay
instead of a dismissal in this case, that order" is not a
final determination triggering appeal); and it is further
ORDERED that the Clerk shall restore this matter to
the Court's active docket within fifteen days from the date
of entry of the Court of Appeals’ decision in Sylvain v.
Holder,
U.S.C.A.
Index
No.
11-3357,
and
shall
serve
163, 167 (5th Cir. 2004) (“The effect of an administrative closure is
no different from a simple stay, except that it affects the count of
active cases pending on the court's docket; i.e., administratively
closed cases are not counted as active . . . . That situation is the
functional equivalent of a stay, not a dismissal. . . .”). The Court
of Appeals also discussed the tool of administrative termination with
approval, noting its use for the purposes of effective case management.
See Penn W. Assocs., Inc. v. Cohen, 371 F.3d 118, 126-28 & n.9 (3d Cir.
2004); see also Mercer v. Allegheny Ludlum Corp., 132 F.R.D. 38, 38-39
(W.D. Pa. 1990), aff'd, 931 F.2d 50 (3d Cir. 1991) (same). Moreover,
the Third Circuit: (a) suggested that a district court’s resort to the
tool of administrative termination is indicative of the district’s tidy
docket management, see Penn, 371 F.3d at 128 (noting that the “Lehman’s
view of administrative closings has been followed by the Courts of
Appeals for the Tenth and Eleventh Circuits” and citing, inter alia,
the concurring opinion in Am. Heritage Life Ins. Co. v. Orr, 294 F.3d
702, 715 (5th Cir. 2002), which observed that “administrative closure
reflects nothing more than the federal courts’ overarching concern with
tidy dockets”); and (b) concluded its assessment of the tool with the
following unambiguous endorsement: “[administrative termination is] a
device that, when used in correct context, enhances a district court's
ability to manage its docket.” Id. at 118.
5
Petitioner with a copy of the decision rendered by the
Court of Appeals;4
ORDERED
that
Petitioner's
motion
(D.E.
No.
2)
is
denied without prejudice to renewal in the event Petitioner
elects
to
Appeals'
file
an
resolution
amended
pleading
of
issue
the
at
upon
the
the
Court
heart
of
of
his
Petition; and it is further
ORDERED that the Clerk shall serve this Order upon
Petitioner and Respondents by means of electronic delivery.
s/Esther Salas
ESTHER SALAS
United States District Judge
4
Petitioner will be allowed an ample opportunity to amend his Petition
by stating his claims, if any, under the guidance provided by the Court
of Appeals.
6
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