ORTEGA v. HOLDER et al

Filing 2

OPINION fld. Signed by Judge Jose L. Linares on 4/16/14. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

OSCAR OMAR ORTEGA,
Civil Action No.

14-1640 (JLL)

Petitioner,
v.

:

OPINION

ERIC H. HOLDER, et a!.,
Respondents.

LINARES, District Judge

Petitioner Oscar Omar Ortega (“Petitioner”) is currently being detained by the Department
of Homeland Security, Immigration and Customs Enforcement (“DHS/ICE”) at the Essex County
Correctional Facility in Newark, New Jersey, pending his removal from the United States. On or
about March 5, 2014, Petitioner filed a Petition for writ of habeas corpus under 28 U.S.C.

§ 2241,

in which he challenged his detention. (ECF No. 1.) For the reasons stated below, this Court will
deny the Petition.
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I. BACKGROUND

Petitioner is a native and citizen of Honduras who entered the United States without
inspection in 1998. (Pet.

¶J 13-14.) On September 3, 2013, an immigration judge found that

Petitioner was inadmissible and ordered him removed. (Pet.

¶ 15.) In the next paragraph of the

petition, Petitioner alleges conflicting information. He states that he reserved, but did not file, an
1

In addition to Roy L. Hendricks, Warden of Essex County Correctional Facility, Petitioner has
also named various federal officials as respondents. The only proper respondent to a habeas
petition challenging current confinement is the warden of the facility where the petitioner is being
held. Accordingly, Warden Roy L. Hendricks is the only properly named Respondent in this
action, and the other named respondents will be dismissed from this action with prejudice. See
Rumsfeld v. Padilla, 542 U.S. 426 (2004); Yi v. Maugans, 24 F.3d 500 (3d Cir. 1994).

appeal of that order, but he also states that the Board of Immigration Appeals denied his appeal on
the aforementioned September 3’ date. (Pet. ¶ 16.) Petitioner states that he has cooperated fully
with ICE’s efforts to remove him. (Pet.

¶ 18.) Petitioner argues that since it has been more than

six months since his order of removal became final, he should be released. (Pet.

¶11 23-28.)

II. DISCUSSION
A. Legal Standard
Under 28 U.S.C.

§ 224 1(c), habeas relief “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). A federal court has subject matterjurisdiction under § 2241(c)(3) if two requirements
are satisfied: (1) the petitioner is “in custody,” and (2) the custody is alleged to be “in violation of
the Constitution or laws or treaties of the United States.” 28 U.S.C.

§ 224 1(c)(3);

Maleng v.

Cook, 490 U.S. 488, 490 (1989).
This Court has subject matter jurisdiction over this Petition under

§ 2241 because

Petitioner was detained within its jurisdiction, by a custodian within its jurisdiction, at the time he
filed his Petition, see Spencer v. Lemna, 523 U.S. 1, 7 (1998) and Braden v. 30th Judicial Circz.tit

Court, 410 U.S. 484, 494—95, 500 (1973), and because Petitioner asserts that his mandatory
detention is not statutorily authorized by 8 U.S.C.

§ 1231.

See Zadvydas v. Davis, 533 U.S. 678,

699 (2001).
B. Analysis
“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
2

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.

§ 123 l(a)(l)(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 l(a)(l)(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 court’s 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.

§ 123 l(a)(l)(B).

Section
See 8 U.S.C.

§ 123 1(a)(2) requires DHS to detain aliens during this 90-day removal period.

§ 123 l(a)(2) (“During the removal period, the Attorney General shall detain the

alien”). However, if DHS does not remove the alien during this 90—day removal period, then

§

1231 (a)(6) authorizes DHS to thereafter release the alien on bond or to continue to detain the alien.
Specifically,

§ 123 1(a)(6) provides:

An alien ordered removed who is inadmissible under section 1182 of this title,
removable under section 1227(a)(l)(C), l227(a)(2), or l227(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 1(a)(6).

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The Supreme Court held in Zadvydas that

§ 1231 (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.”

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.
Id. at 701. The Supreme Court held that, to state a claim under

§ 2241, the alien must provide

good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future. Id. 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.
Id.
In this case, assuming that Petitioner did not file an appeal of the immigration judge’s order
of removal, the order became final on October 3, 2013. See 8 C.F.R.

§ 1241.1(c).

As such, his

presumptive six-month period had not yet ended when he filed his petition on March 5, 2014 and
his detention does not violate

§ 123 1(a)(6), as interpreted by Zadvydas. If Petitioner’s other

statement of the facts is correct and the Board of Immigration Appeals did in fact deny his appeal
on September 3, 2013, then the six month presumptive period had expired at the time he filed his
habeas petition. However, the Zadvydas Court emphasized that “[t]his 6—month presumption
[j
does not mean that every alien not removed must be released after six months.” Zathydas, 533
U.S. at 701. Rather, the Supreme Court explained that, to state a claim for habeas relief under
4

§

2241, an alien must provide in the petition good reason to believe that his or her removal is not
foreseeable.
In the petition, Petitioner argues that there “was an extensive delay of Petitioner [sic] case
by the Immigration court and the Board of Appeals, and not by Mr. Ortega Oscar, Petitioner
should be immediately released base [sic] on the violation of his due process.” (Pet.

¶ 18.) He

further states that “[t]here is no significant likelihood that petitioners’ removal will occur in the
reasonably foreseeable future. Petitioner does not pose a danger to the community or a risk for
flight, and no special circumstances exist to justif,’ his continued detention.”

(Pet.

¶ 28.)

However, these allegations are not sufficient to support his conclusion that his removal is not
reasonably foreseeable and, under these circumstances, Zadvydas does not require DHS to respond
by showing that removal is foreseeable. See Zathydas, 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 Gen. 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). Because Petitioner has not asserted facts showing that there is good reason to believe
that there is no significant likelihood of removal in the reasonably foreseeable future, his detention
is authorized by

§

123 1(a)(6). See, e.g., Joseph v. United States, 127 F. App’x 79, 81 (3d Cir.

2005) (“Under Zadvvdas, a petitioner must provide ‘good reason’ to believe there is no likelihood
of removal, 533 U.S. at 701, and [petitioner] has failed to make that showing here.”).
5

This dismissal is without prejudice to the filing of a new

§ 2241

petition (in a new case), in

the event that Petitioner can allege facts, at the time of filing, showing good reason to believe that
there is no significant likelihood of his removal in the reasonably foreseeable future.
III. CONCLUSION

For the reasons set forth above, the petition will be dismissed without prejudice. An
appropriate order follows.
Dated

tf(

/1

L/

Lkinares, U.S.D.J.

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