PUSEY v. AVILES et al
Filing
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OPINION. Signed by Judge Faith S. Hochberg on 1/29/14. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
ROGER O. PUSEY,
:
Hon. Faith S. Hochberg
:
Petitioner,
:
Civil No. 13-3416 (FSH)
:
v.
:
OPINION
:
OSCAR AVILES, et al,
:
Date: January 29, 2014
:
Respondents.
:
___________________________________ :
APPEARANCES:
ROGER O. PUSEY
262756
5 South
Hudson County Correctional Center
35 Hackensack Ave.
Kearny, NJ 07032
HOCHBERG, District Judge
Petitioner Roger O. Pusey, an immigration detainee confined at the Hudson County
Correctional Center in Kearny, New Jersey, has submitted a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241, 1 challenging his mandatory detention during his immigration
removal proceedings. The sole respondent is Oscar Aviles. Because it appears from review of
the Petition that Petitioner is not entitled to the relief he seeks at this time, the Court will deny the
petition without prejudice.
1 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….”
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I. BACKGROUND
Petitioner, a native of Jamaica, who, at the time of filing the petition, had been detained for
approximately nine months awaiting the resolution of his removal proceedings. Petitioner came
to the United States as a Lawful Permanent Resident on June 29, 1990. He received a burglary
conviction and an assault conviction on May 11, 2004 and was sentenced to six years of
incarceration for the former, two years of incarceration for the latter conviction. Then, on August
23, 2004, he was convicted of larceny and failure to appear, receiving two concurrent 30 day terms
of imprisonment for each.
He was subsequently taken into custody by U.S. Immigration and Customs Enforcement
(“ICE”) on August 9, 2012. Petitioner now files this petition challenging his ongoing mandatory
detention because he was not taken into immigration custody immediately upon release from
criminal incarceration related to a removable offense.
II. DISCUSSION
A. Legal Standard
Federal law sets forth the authority of the Attorney General to detain aliens in removal
proceedings, both before and after issuance of a final order of removal. Title 8 U.S.C. § 1226
governs pre-removal-order detention of an alien. Section 1226(c) authorizes the Attorney
General to arrest, and to detain or release, an alien, pending a decision on whether the alien is to be
removed from the United States, except as provided in subsection (c). Section 1226(a) provides,
in relevant part:
(a) Arrest, detention, and release
On a warrant issued by the Attorney General, an alien may be arrested and detained
pending a decision on whether the alien is to be removed from the United States. Except
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as provided in subsection (c) of this section and pending such decision, the Attorney
General(1) may continue to detain the arrested alien; and
(2) may release the alien on(A) bond of at least $1,500 with security approved by, and containing conditions
prescribed by, the Attorney General; or
(B) conditional parole; …
8 U.S.C. § 1226(a).
Certain criminal aliens, however, are subject to mandatory detention pending the outcome of
removal proceedings, pursuant to 8 U.S.C. § 1226(c)(1), which provides in relevant part:
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any offense covered in section
1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in Section
1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(i) of this title on the basis of an offense for
which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section
1227(a)(4)(B) of this title or deportable under section 1227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is released on parole,
supervised release, or probation, and without regard to whether the alien may be arrested or
imprisoned again for the same offense.
8 U.S.C. § 1226(c)(1).
“Post-removal order” detention is governed by 8 U.S.C. § 1231(a). Section 1231(a)(1)
requires the Attorney General to attempt to effectuate removal within a 90-day “removal period.”
The removal period begins on the latest of the following:
(i) The date the order of removal becomes administratively final.
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(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of
the alien, the date of the court’s final order.
(iii) If the alien is detained or confined (except under immigration process), the date the
alien is released from detention or confinement.
8 U.S.C. § 1231(a)(1)(B). “An order or removal made by the immigration judge at the conclusion
of proceedings … shall become final … [u]pon dismissal of an appeal by the Board of Immigration
Appeals.” 8 C.F.R. § 1241.1(a). During the removal period, “the Attorney General shall detain
the alien.” 8 U.S.C. § 1231(a)(2). Section 1231(a)(6) permits continued detention if removal is
not effected within 90 days. However, 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
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).
B. Analysis
Petitioner challenges his detention pursuant to pre-removal proceedings under 8 U.S.C. §
1226(c) because he was not taken into ICE custody immediately upon completion of his criminal
sentence for a removable offense.
As set forth above, an alien is subject to mandatory detention and subsequently removal or
deportation from the United States when he/she:
… is deportable by reason of having committed any offense covered in section
1227(a)(2)(A)(iii), (B), (C), or (D) of this title…when the alien is released, without regard
to whether the alien is released on parole, supervised release, or probation, and without
regard to whether the alien may be arrested or imprisoned again for the same offense.
8 U.S.C. § 1226(c)(1)(B).
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The United States Court of Appeals for the Third Circuit recently addressed this issue in
Sylvain v. Attorney Gen. of U.S., 714 F.3d 150 (3d Cir. 2013). In that case, the court held that
“[e]ven if [8 U.S.C. § 1226(c)] calls for detention ‘when the alien is released,’ and even if ‘when’
implies something less than four years, nothing in the statute suggests that immigration officials
lose authority if they delay. See Sylvain, 714 F.3d at 157. Therefore, the argument that
Petitioner is not subject to mandatory detention under 8 U.S.C. § 1226(c) because ICE did not take
him into custody immediately upon his release from incarceration for his removable offense, must
fail. See id.
In addition, the Court observes that Petitioner does not assert a claim of unreasonably
prolonged detention in violation of the Due Process Clause under Diop v. ICE/Homeland Sec., 656
F.3d 221 (3d Cir. 2011) (finding that Diop’s nearly three-year detention was unconstitutionally
unreasonable and, therefore, a violation of due process). In Diop, the Third Circuit concluded
that the mandatory detention statute, § 1226(c), implicitly authorizes detention for a reasonable
amount of time, after which the authorities must make an individualized inquiry into whether
detention is still necessary to fulfill the statute’s purposes of ensuring that an alien attends removal
proceedings and that his release will not pose a danger to the community. 656 F.3d at 231.
Specifically, the Third Circuit found that the 35-month mandatory detention of Diop was
unreasonable partly because the immigration judge had committed “numerous errors” that caused
the BIA to remand the case three times. Id. at 224-26, 234-35.
Nevertheless, the Third Circuit has not set a “universal point” when mandatory detention
under § 1226(c) is unreasonable. See Leslie v. Attorney Gen., 678 F.3d 265, 270-71 (3d Cir.
2012) (ultimately finding that Leslie’s four-year detention under § 1226(c) was unreasonable
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because it had been prolonged by the alien’s successful appeals, and petitioner should not be
punished by continued detention for having pursued these “bona fide” legal remedies).
In this case, at the time that this opinion is written, the time frame in which Petitioner has
been detained is far short of the lengthy detention period of 35 months which was found to be
unreasonable by the Third Circuit in Diop, and the four-year period of detention found to be
unreasonable in Leslie. Petitioner here has not shown that his mandatory detention until this time
is a violation of the Due Process Clause. Petitioner here has not shown that his time spent in
mandatory detention prior to the filing of the instant Petition was in violation of the Due Process
Clause. Accordingly, the Court dismisses the petition without prejudice to Petitioner bringing a
new and separate action under either Diop or Zadvydas (holding that post-removal-period
detention is six months) in the event that the facts and circumstances of Petitioner’s custody and
detention by ICE should change in the future. 2
III. CONCLUSION
For the foregoing reasons, the Court denies Petitioner’s application for habeas relief
pursuant to 28 U.S.C. § 2241. However, denial is without prejudice to the filing of another § 2241
petition should Petitioner’s detention become unreasonable. An appropriate Order follows.
s/ Faith S. Hochberg
Hon. Faith S. Hochberg, U.S.D.J.
2 The Court further notes that should a final order of removal be entered against Petitioner, the
basis of his detention changes, and Petitioner would be subject to mandatory detention under 8
U.S.C. § 1231(a)(2), for a 90-day removal period. After the 90-day removal period expires, the
Government may continue to detain Petitioner pending removal or release Petitioner under
supervision. 8 U.S.C. § 1231(a)(6). However, this post-removal-period detention provision
contains an implicit reasonableness limitation, which the Supreme Court has held to be a
presumptive limit of six months. Zadvydas, 533 U.S. at 701.
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