DUBOIS v. MORTON et al

Filing 4

OPINION fld. Signed by Judge Kevin McNulty on 8/18/14. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PASCAL JACQUES DUBOIS,
Petitioner,

Civ. No. 14-3 861 (KM)
OPINION

V.

ROY L. HENDRICKS,
Respondent.

I.

INTRODUCTION

Petitioner, Pascal Jacques Dubois, was previously in custody as an immigration detainee
at the Essex County Correctional Facility in Newark, New Jersey. Mr. Dubois is a native and
citizen of Morocco. He is proceeding pro se with a petition for writ of habeas corpus pursuant to
28 U.S.C. 2241, seeking his release from immigration detention. For the following reasons, the
habeas petition will be dismissed as moot.
II.

BACKGROUND

Mr. Dubois was placed into immigration custody on March 29, 2013 after completing a
state criminal sentence. On December 17, 2013, an Immigration Judge ordered Mr. Dubois
removed from the United States. Mr. Dubois waived his right to appeal.
On June 16, 2014, the Court received petitioner’s

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§ 2241 petition. In that petition, Mr.

Dubois argued that his immigration detention had become so prolonged as to violate Zathydas v.
Davis, 533 U.S. 678 (2001). He sought immediate release from custody under reasonable
conditions of supervision, or, in the alternative, a constitutionally adequate hearing in which
respondent would be required to demonstrate that his continued detention is justified.
1 note in passing that petitioner misdated his petition June 18, 2014; it was actually received
and filed in this Court two days before that date.

On June 27, 2014, I ordered respondent to answer the petition. Respondent submitted a
letter on July 14, 2014 which stated that, that same day, Mr. Dubois had been released from
immigration detention under an order of supervision. Respondent attached a copy of the order of
supervision to the letter.
III.

DISCUSSION

The Attorney General has the authority to detain aliens in removal proceedings both
before and after the issuance of a final order of removal. Post-removal order immigration
detention is governed by 8 U.S.C.

§ 123 1(a). Section 123 1(a)(l)(A) states that, “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”).” Id.

§ 123 1(a)(1)(A). The removal period begins on the latest of the

following:
(i)
(ii)

(iii)

Id.

The date the order of removal becomes administratively
final.
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.
If the alien is detained or confined (except under an
immigration process), the date the alien is released from
detention or confinement.

§ 1231 (a)( 1 )(B). Federal regulations provide that:
An order of removal made by the immigration judge at the
conclusion of the proceedings under section 240 of the Act shall
become final:
(a) Upon dismissal of an appeal by the Board of Immigration
Appeals;
(b) Upon waiver of appeal by the respondent;
(c) Upon expiration of the time allotted for an appeal if the
respondent does not file an appeal within that time;
(d) If certified to the Board or Attorney General, upon the date of
the subsequent decision ordering removal; or
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(e) If an immigration judge issues an alternate order of removal in
connection with a grant of voluntary departure, upon overstay
of the voluntary departure period, or upon the failure to post a
required voluntary department bond within 5 business days. If
the respondent has filed a timely appeal with the Board, the
order shall become final upon an order of removal by the
Board or the Attorney General, or upon overstay of the
voluntary departure period granted or reinstated by the Board
or the Attorney General.
8 C.F.R.

§ 1241.1(a). Section 1231(a)(2) requires that the alien be detained during the ninety

day post-removal order period. See 8 U.S.C.
during the ninety-day period, then

§ 123 l(a)(2). However, if the alien is not removed

§ 1231 (a)(6) authorizes that the alien be released on bond or

that the alien be continued to be detained. Indeed,

§ 1231 (a)(6) provides that:

An alien ordered removed who is inadmissible under section 1982
of this title, under section 1227(a)(1)(C), l227(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).

In Zadvydas, 533 U.S. 678, the United States Supreme Court held that

§ 123 1(a)(6)

“limits an alien’s post-removal-period detention to a period reasonably necessary to bring about
that alien’s removal from the United States. It does not permit indefinite detention.” 533 U.S. at
689. To state a claim under

§ 2241, the petitioner must provide facts showing good reason to

believe that there is no reasonable likelihood of his actual removal in the reasonably foreseeable
fliture. See Zadvydas, 533 U.S. at 689. “Zadiydas does not delineate the boundaries of
evidentiary sufficiency, but it suggest that an inversely proportional relationship is at play: the
longer an alien is detained, the less he must put forward to obtain relief.” Alexander v. Attorney
Gen. of United States, 495 F. App’x 274, 276-77 (3d Cir. 2012) (per curiam) (citing Zadvydas,

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533 U.S. at 701). As a rule of thumb, the Supreme Court stated that six months is a
presumptively reasonable period of post-removal detention under

§ 123 1(a)(6).

With that as a legal background, I find that it is unnecessary to decide whether petitioner
is entitled to habeas relief. “Under Article III of the Constitution, federal courts may adjudicate
only actual, ongoing cases or controversies.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477
(1990) (citations omitted). “To invoke the jurisdiction of a federal court, a litigant must have
suffered, or be threatened with, an actual injury traceable to the defendant and likely to be
redressed by a favorable judicial decision.” Id. (citations omitted).
Mr. Dubois’ petition is now moot in light of his release from immigration detention under
an order of supervision. Such a release (or alternatively, a hearing in which the government
justified its failure to release him) is precisely the relief Mr. Dubois sought in his petition. That
relief has now been granted.
In that respect, Mr. Dubois’s case is similar to Nunes v. Decker, 480 F. App’x 173 (3d
Cir. 2012) (per curiam). In Nunes, the petitioner contested his continued post-order removal
immigration detention under Zadvydas. See Nunes, 480 F. App’x at 174. The District Court
denied relief. See id. After the matter was fully briefed on appeal, the Court determined that the
case was now moot after noting that Nunes was released under an order of supervision which did
not provide for future detention absent his violation of a condition of release. See id. at 175.
Thus, the Court determined that the petitioner’s potential indefinite detention could not be
reasonably expected to resume. The Court could not assume that Nunes, who had acknowledged
the conditions of his release in writing, would violate them and place himself at risk of detention.
See Id. Here, as in Nunes, Mr. Dubois has been released from immigration detention pursuant to
an order of supervision, as he requested. There is no reason to think he will be detained again

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unless he violates conditions of supervision, a speculative state of affairs and one within his
control. Accordingly, Mr. Dubois’s petition seeking release from post-order removal
immigration detention is moot, as he “has achieved the result he sought in in his habeas petition
and his change in circumstances has ‘forestalled any occasion for meaningful relief” Nunes
480 F. App’x at 175 (quoting Artway v. Atty Gen., 81 F.3d 1235, 1246 (3d Cir. 1996)) (other
citation omitted); see also Rojas v. Lowe, No. 13-0871, 2013 WL 5876851, at *3 (M.D. Pa. Oct.
30, 2013) (dismissing habeas petition raising Zadvydas claim as moot where petitioner was
released from immigration detention pursuant to an order of supervision).
IV.

CONCLCUSION

For the foregoing reasons, the habeas petition will be dismissed as moot. An appropriate
order will be entered.

DATED: August 18, 2014
KEVIN MCNULTY
United States District Judge

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