BROWN v. HENDRICKS et al
Filing
2
OPINION. Signed by Judge Stanley R. Chesler on 4/8/14. (DD, )
NOT FOR PUBLICATION
CLOSED
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
DERICK P. BROWN,
:
Petitioner,
:
v.
:
ROY L. HENDRICKS, et al.,
:
Civil Action No. 13-7266 (SRC)
OPINION
Respondents.
:
_________________________________
CHESLER, District Judge
Petitioner, a native and citizen of Sierra Leone and a removal-period detainee confined at
the Essex County Correctional Facility in Newark, has submitted a § 2241 petition (“Petition”)
unaccompanied by an in forma pauperis application or $5 filing fee. See ECF No. 1. Petitioner
asserts that, on April 11, 2012, his Immigration Judge ordered him removed to his country of
origin, and that decision was entered while Petitioner was still serving the prison term underlying
his removal. See id. at 3. Petitioner did not appeal the immigration judge’s order. See id. He
also asserts that he was taken in custody of the Department of Homeland Security (“DHS”) on
November 12, 2013, see id., presumably upon his release from penal confinement. Petitioner
maintains that, since he was ordered removed on April 11, 2012, he should be released from
confinement pursuant to the holding of Zadvydas v. Davis, 533 U.S. 678 (2001). See id. at 3-4.
Petitioner errs. 8 U.S.C. § 1231(a)(1)(A) provides that the government has a ninety-day
period to remove an alien ordered removed from the United States (“removal period”). This
removal period starts on the latest of the following: (a) the date when the order of removal
becomes administratively final (that is, when the appeal to the Board of Immigration Appeals
was either taken and ruled upon, or the time to appeal expired); (b) if the removal order is
judicially reviewed and, in addition, if a circuit court ordered a stay of the removal, at the date of
the court’s final order as to that removal; or (c) if the alien is detained or confined (except under
an immigration process), the date when the alien is released from that underlying confinement.
See id. § 1231(a)(1)(B). 1 Here, Petitioner’s removal period was triggered when he was released
from his penal confinement.
Moreover, in Zadvydas, the Supreme Court extended the removal period by holding that
aliens may be detained under § 1231(a)(6) for “a period reasonably necessary to bring about that
alien's removal from the United States.” Zadvydas, 533 U.S. at 689. Recognizing that this
holding would lead to difficult judgment calls in the courts, the Supreme Court, “for the sake of
uniform administration in the federal courts,” recognized a six-month “presumptively reasonable
period of detention.” Id. at 700-01 (emphasis supplied). However, the Court stressed, in no
ambiguous terms, that even
[a]fter this 6-month period, o[nly if] the alien provides good reason
to believe that there is no significant likelihood of removal in the
reasonably foreseeable future, the Government must respond with
evidence sufficient to rebut that showing. . . . This 6-month
presumption, of course, does not mean that every alien not
removed must be released after six months. To the contrary, an
alien may be held in confinement until it has been determined that
there is no significant likelihood of removal in the reasonably
foreseeable future.
Id. at 701.
1
“[T]he statute provides that the removal period begins on the latest of several dates. The
passing of one date does not stop the operation of the statute. . . . Therefore, the only way to
determine when the removal period begins, or began, is to look at what events already have
occurred. If there is another potential event, there is another potential beginning date for the
removal period. The only sensible reading of this provision is that [DHS] is required to
effectuate the removal within 90 days of certain events, but will have another 90 days if another
one of the designated events occurs at a later date.” Michel v. INS, 119 F. Supp. 2d 485, 498
(M.D. Pa. 2000).
2
Since detention during the removal period is mandatory, see § 1231(a)(2), it follows that
Petitioner’s Zadvydas-based claim is facially unripe and will remain such until: (a) at least six
months expire from November 12, 2013, that is, the date of his release from penal custody; and
(b) he is able to shift the burden to Respondents by asserting facts showing that there is no
significant likelihood of his removal to Sierra Leone in the reasonably foreseeable future. 2
Since, as of now, Petitioner has been in the DHS custody for less than six months, his
Petition is subject to dismissal as unripe. Petitioner may raise his Zadvydas-based claim by
means of a new and separate § 2241 petition if this claim ripens. Meanwhile, in connection with
this matter, he is obligated to submit his in forma pauperis application or $5 filing fee. See
Hairston v. Gronolsky, 348 F. App’x 716, 718 (3d Cir. Oct. 15, 2009) (observing that the
prisoner's legal obligation to pay the filing fee or obtain in forma pauperis status is automatically
incurred by the very act of raising a legal claim (citing Hall v. Stone, 170 F.3d 706, 707 (7th Cir.
1999))). An appropriate Order follows.
/s/
STANLEY R. CHESLER,
United States District Judge
Dated: April 8th, 2014
2
Moreover, if Petitioner was not taken into the DHS custody immediately upon his release from
penal confinement, his six-month presumptive removal period still started to run only on the date
of his entry in the DHS custody, i.e., November 12, 2013. See Sylvain v. Att’y General, 714
F.3d 150 (3d Cir. 2013) (the DHS retains the authority to take aliens into mandatory detention
under § 1226(c) even if it does not do so immediately upon their release from criminal custody).
Furthermore, this 6-month removal period would be extended, and Petitioner may remain in
detention during such extended period, if he “acts to prevent [his] removal.” 8 U.S.C. §
1231(a)(1)(C); see also Pelich v. INS, 329 F.3d 1057, 1060 (9th Cir. 2003) (the temporal
limitation built into the governing legal regime “does not save an alien who fails to provide
requested documentation to effectuate his removal. The reason is self-evident: the detainee
cannot convincingly argue that there is no significant likelihood of removal in the reasonably
foreseeable future if the detainee controls the clock”).
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