FULLER v. HOLDER et al
Filing
2
OPINION. Signed by Judge Dennis M. Cavanaugh on 12/19/2013. (tf, n.m.)
NQJ FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JASON FULLER.
Civil Action No. 13-7389 (DMC)
Petitioner,
OPINION
ERIC HOLDER. JR., et al.,
Respondents.
APPEARANCES:
JASON FULLER, A 205 753 380
Essex County Correctional Facility
354 Doremus Avenue
Newark, New Jersey 07105
Petitioner Pro Se
PAUL A. BLAINE
OFFICE OF THE UNITED STATES ATTORNEY
401 Market Street 4th Floor
Camden, New Jersey 08101
Attorney for Respondents
—
CAVANAUGH, District Judge:
Jason Fuller filed a Petition for Writ of Habeas Corpus. pursuant to 28 U.S.C.
§
2241
*
challenging his post-removal-period detention at Essex County Correctional Facility, where he is
being held in the custody of the Department of Homeland Security (DHS”) without a bond
hearing.
This Court will summarily dismiss the Petition because Mr. Fuller has not alleged facts
showing that he has been detained for more than six months after the beginning of the removal
period, as required by Zadiydas v. Davis, 533 U.S. 678, 701 (2001), or that his detention is
otherwise in violation of federal law. The dismissal is without prejudice to the filing of a new
2241 petition (in a new case), after January 27, 2014.
§
I.
BACKGROUND
Jason Fuller asserts that he is a native and citizen of Jamaica, He alleges that he was
admitted to the United States in 1986, DHS took him into custody on April 26, 2013. and on June
27, 2013, an immigration judge ordered his removal.
1
Fuller alleges that his removal to Jamaica
is not reasonably foreseeable because [t1he Jamaican Government does not have any documents
to verify that he is a national or citizen of Jamaica.” (Petition, ECF No, 1 at 2.) He claims that
his continued detention violates 8 U.S.C. 123 1(a)(6), as interpreted by Zadvydas, and violates his
right to due process. Id. at 5-6. He seeks an order to show cause and a writ of habeas corpus
directing his release.
II.
DISCUSSION
A. Jurisdiction
Under 28 U.S.C.
§
224 1(c), habeas jurisdiction “shall not extend to a prisoner unless.
[hje is in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C.
§
2241(c)(3); Maleng
i’.
Cook, 490 U.S. 488, 490 (1989). This Court has subject matter
jurisdiction over the Petition under
§
2241 because Petitioner was detained within its jurisdiction
in the custody of the DI-IS at the time he tiled his Petition, see Spencer v. Kemna, 523 U.S. 1, 7
(1998), and he asserts that his detention violates federal law and his constitutional rights. See
Bonhoinetre v. Gonzales,
B.
414 F.3d 442, 445-46 (3d Cir. 2005).
Standard of Review
Ftc does not indicate that he appealed or waived the right to appeal.
2
“Federal courts are authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face,” McFariandv. Scott, 512 U.S. 849, 856 (1994); United States v,
Thomas. 221 F.3d 430, 437 (3d Cir. 2000); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985).
Habeas
Rule 4 requires a district court to examine a habeas petition prior to ordering an answer and “[i]f it
plainly appears from the petition and any attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the petition and direct the clerk to notify the
petitioner.” 28 U.S.C.
§ 2254 Rule 4. applicable through Rule
1(b). Dismissal without the filing
of an answer or the State court record is warranted “if it appears on the face of the petition that
petitioner is not entitled to relief.” Id.; see also McFarland, 512 U.S. at 856; Thomas, 221 F.3d at
437 (habeas petition may be dismissed where “none of the grounds alleged in the petition would
entitle [the petitionerj to relief’).
C.
Legality of Detention
“Detention during removal proceedings is a constitutionally permissible part of that
process.” Demore v. Kim. 538 U.S. 510 (2003). The Immigration and Nationality Act (“INA”)
authorizes the Attorney General of the United States to issue a warrant for the arrest and detention
of an alien pending a decision on whether the alien is to be removed from the United States. See 8
U.S.C.
§
1226(a) (“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.
.
Once an alien’s order of removal is final, the Attorney General is required to remove him or her
from the United States within a 90-day “removal period.” See 8 U.S.C.
§
1231 (a)( 1 )(A) (“Except
as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall
remove the alien from the United States within a period of 90 days (in this section referred to as the
removal period’).”) 8 U.S.C.
§ 123 1(a)(1)(A). This 90-day removal period begins on the latest
of the following:
(i) The date the order of removal becomes administratively final.
(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 courts final order.
(iii) If the alien is detained or confined (except under an
immigration process), the date the alien is released from detention
or confinement.
8 U.S.C.
§ 1231(a)(l)(B).
Section
See 8 U.S.C.
§
§ 1231 (a)(2) requires DHS to detain aliens during this 90-day removal period.
123 1(a)(2) (“During the removal period, the Attorney General shall detain the
alien”). However, if DI-IS does not remove the alien during this 90-day removal period, then
§
123 l(a)(6) authorizes DIlS to thereafter release the alien on bond or to continue to detain the alien.
Specifically,
§
123 l(a)(6) provides:
An alien ordered removed who is inadmissible under section 1182
of this title, removable under section 1227(a)(1)(C). 1227(a)(2). or
1227(a)(4) of this title or who has been determined by the Attorney
General to be a risk to the community or unlikely to comply with the
order of removal, may be detained beyond the removal period and,
if released, shall be subject to the terms of supervision in paragraph
(3).
8 U.S.C.
§
123 l(a)(6),
The Supreme Court held in Zadvydas that
§ 123 l(a)(6) does not authorize the Attorney
General to detain aliens indefinitely beyond the removal period, but limits an alien’s
post-removal-period detention to a period reasonably necessary to bring about that alien’s removal
from the United States.” Zadvydas, 533 U.S. at 689. To guide habeas courts, the Supreme Court
recognized six months as a presumptively reasonable period of post-removal-period detention.
4
Id. at 701. The Supreme Court held that, to state a claim under § 2241, the alien must show that he
has been detained beyond the six-month presumptively reasonable period, and must provide good
reason to believe that there is no significant likelihood of removal in the reasonably foreseeable
future, Zadvydas, 533 U.S. at 701. Specifically, the Supreme Court determined:
After this 6-month period, once 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. And for detention to
remain reasonable, as the period of prior postremoval confinement
grows. what counts as the “reasonably foreseeable Future”
conversely would have to shrink. 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.
Zadvydas, 533 U.S. at 701.
In this case, Mr. Fuller states that an Immigration Judge ordered his removal on June 27,
2013.
Because he does not state that he appealed to the Board of Immigration Appeals or waived
the right to appeal, the order of removal presumably became administratively final when the time
to appeal to the Board of Immigration Appeals expired 30 days later on July 29, 2013.2 Pursuant
to 8 U.S.C.
§
123 1(a)(l)(B)(i), the 90-day removal period began on July 29. 2013, when the order
of removal became administratively final, The six-month presumptively reasonable period of
post-removal-period detention will not expire until January 29. 2014.
2
Because Mr. Fuller filed
An order of removal becomes “final upon the earlier of (i) a determination by the Board of
Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is
permitted to seek review of such order by the Board of Immigration Appeals.” 8 U.S.C. §
1 lOl(a)(47)(B); see also 8 C.F.R. § 1241.1; Giraldo v. Holder, 654 F.3d 609, 611(6th Cir. 2011):
United States v. Calderon-Minchola, 351 F.App’x 610, 611 n.1 (3d Cir. 2009). An appeal to the
Board of Immigration Appeals of the decision of an Immigration Judge must be filed within 30
calendar days after the stating of an oral decision or the mailing of a written decision. See 8
C.F.R. § 1003.38(b).
-
5
his
§
2241 Petition before the expiration of the presumptively reasonable six-month period tbr
removal, his detention does not violate
§
123 l(a)(6), as interpreted by Zadvydas. In the absence
3
of such an initial showing, DHS does not have to respond by showing that removal is reasonably
foreseeable. See Zadvydas, 533 U.S. at 701 (“After this 6-month period, once 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.”); see also Barenboy v. Attorney General of US., 160 F.App’x 258, 261 n.2 (3d Cir.
2005) (“Once the six-month period has passed, the burden is on the alien to provide[] good reason
to believe that there is no significant likelihood of removal in the reasonably foreseeable future...
Only then does the burden shift to the Government, which must respond with evidence
sufficient to rebut that showing.”) (citation and internal quotation marks omitted).
Mr. Fuller also argues that DHS violated his due process rights by failing to give him a
hearing, This claim lacks merit because, under the rationale of Zadvydas, an alien is not entitled
to a hearing unless he has been detained beyond the presumptively reasonable six-month period
(and he alleges facts showing that there is no significant likelihood of removal in the reasonably
foreseeable future). Zad’ydas, 533 U.S. at 701; ef Wilson v. Hendricks. Civ. No. 7315 (KM).
2013 WL 324743 at *2 (D.N.J. Jan. 25, 2013) (“The U.S. Supreme Court has adopted a rule of
thumb that a post-removal detention of up to six months is reasonable, but that a bond hearing may
be required after that time.”).
4
Even if Mr. Fuller waived his right to appeal, the presumptively reasonable six-month period
will not expire until December 27, 2013.
This Court declines to adopt the Ninth Circuit’s holding in Diouf v. Aapolitano. 634 F.3d 1081.
1092 (9th Cir. 2011), that “an alien facing prolonged detention under § 123 l(a)(6) is entitled to a
bond hearing before an immigration judge and is entitled to be released from detention unless the
government establishes that the alien poses a risk of flight or a danger to the community.” See
6
The instant Petition must be dismissed because Mr. Fuller does not assert facts showing
that his detention is “in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C.
§ 2241(c)(3); see, e.g., Akinwale v. Ashcrofl, 287 F.
3d 1050, 1052 (11th Cir. 2002) (“[l]n
order to state a claim under Zadvydas the alien not only must show post-removal order detention in
excess of six months but also must provide evidence of a good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future.”). The dismissal is without
prejudice to the filing of a new
§ 2241
petition (in a new case) after January 29. 2014, in the event
that Mr. Fuller can allege facts at that time showing good reason to believe that there is no
significant likelihood of his removal in the reasonably foreseeable future.
5
III.
CONCLUSION
For the foregoing reasons, this Court will dismiss the Petition.
DENNIS
DATEI):
/7
.CAVANAUGII,
.D.J.
,2013
Davies v. Hendricks, Civ. No. 13-2806 (WJM), 2013 WL 2481256 *5 n.2 (D.N.J. June 10. 2013).
Alternatively, if Petitioner has reason to believe that his removal in the reasonably foreseeable
future is not likely, he may at any time ask DHS to review his detention and he may submit written
documentation supporting his request. See 8 C.F.R, § 241.13(d)(1) (“An eligible alien may
submit a written request for release to [DHS] asserting the basis for the alien’s belief that there is
no significant likelihood that the alien will be removed in the reasonably foreseeable future. The
alien may submit whatever documentation to [DHSj he or she wishes in support of the assertion
that there is no significant likelihood of removal in the reasonably foreseeable future.”)
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