Phrance v. Johnson et al

Filing 30

OPINION. Signed by Judge Claire C. Cecchi on 12/8/2015. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHARLES PHRANCE,
Civil Action No. 14-7693 (CCC)
Petitioner,
v.

OPINION

JEH JOHNSON, eta!.,

Respondents.
CECCHI, District Judge.

Presently before the Court is Petitioner Charles Phrance’s (“Petitioner”) Petition for Writ
of Habeas Corpus pursuant to 18 U.S.C.

§ 2241 (“Petition”). (ECF No. 2.) The Petition was

originally filed in the Southern District ofNew York, and per that court’s December 3, 2014 order,
the case was transferred to this Court. (ECF No. 15.) The Court ordered Respondent Oscar Aviles
(“Respondent”) to answer on May 7, 2015 (ECF No. 23),’ and Respondent filed an Answer on
June 16, 2015.

(ECF No. 24.) Petitioner filed a Reply on June 29, 2015. (ECF No. 25.) for

reasons stated below, the Petition is denied.
I.

FACTUAL BACKGROUND

The Court incorporates by reference the factual findings of its May 7, 2015 opinion (ECF
No. 22), and will only recite relevant facts for the purposes of this Opinion here. After the May
19, 2014 Petition for Writ of Habeas Corpus was filed, on July 17, 2014, an order of removal was
issued against Petitioner. (ECf No. 24-1 at 5.) On November 25, 2014, the Board of Immigration

23.)

‘All other Respondents were dismissed in the Court’s May 7, 2015 Order. (See ECF No.

Appeals (“B IA”) dismissed Petitioner’s appeal, rendering the order of removal final. Id. On
December 11, 2014, Petitioner appealed to the Second Circuit, and on December 13, 2014,
Petitioner filed a request for stay of removal. Id. On July 30, 2015, the Second Circuit denied
Petitioner’s motion for stay. (ECF No. 29 at 1.)

II.

DISCUSSION

At the outset, the Court’s May 7, 2015 order to answer specifically instructed Respondent
to address the issues raised in Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d
Cir. 2015), because at that time the Court did not know a final order of removal had been issued
against Petitioner. Now that an order of removal has been entered, Chavez-Alvarez, which deals
with pre-removal-order detention, see Id. at 474-75, is no longer controlling. Petitioner’s claim
challenging the length of his detention, however, is applicable to post-removal-order detention.
As such, the Court will address Petitioner’s claim on the merits.
Detention pending removal (“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.

(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.

§ 123 1(a)(1)(B). “An order of removal made by the immigration judge at the conclusion of
proceedings

.

.

.

shall become final

.

.

.

[ujpon waiver of appeal by the respondent.” 8 C.F.R.

§ 1241.1(b). During the removal period, “the Attorney General shall detain the alien.” 8 U.S.C.

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§ 1231 (a)(2). Section 1231 (a)(6) permits continued detention if removal is not effected within 90
days.
The U.S. Supreme Court held in Zadvydas v. Davis, 533 U.S. 678 (2001), that

§ 123 1(a)(6)

does not authorize the Attorney General to detain aliens indefinitely pending removal, 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.” Id. at 689. To guide habeas courts, the Supreme Court
recognized six months as a presumptively reasonable period of post-removal-order detention. Id.
at 701. The Supreme Court held that, to state a claim under

§ 2241, the alien must provide good

reason to believe 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.
However, where an alien’s challenge to a removal order prevents his removal, the six
month reasonable period of Zadvydas is extended. See Brodyak v. Davies, No. 14-435 1, 2015 WL
1197535, at *3 (D.N.J. Mar. 16, 2015) (citing Evangelista v. Ashcroft, 204 F. Supp. 2d 405, 409
(E.D.N.Y. 2002)); see also Soberanes v. Comfort, 388 F.3d 1305, 1311(10th Cir. 2004) (detention
“directly associated with a judicial review process

.

.

.

has a definite and evidently impending

termination point” and is therefore lawful); Akinwale v. Ashcroft, 287 F.3d 1050, 1052 n.4 (11th

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Cir. 2002) (the filing of a motion for stay of deportation interrupts the running of time under
Zathydas).
Here, Petitioner’s order of removal became final on November 25, 2014, when the BIA
dismissed Petitioner’s appeal, which started his six-month Zadvydas period. Petitioner appealed
that decision on December 11, 2014, and filed a request to stay removal on December 13, 2014.
As such, Petitioner’s Zadvydas period ran from November 25, 2014 to December 13, 2014, or for
18 days. According to Respondent, the primary reason why Petitioner has not been removed is
because the government has a forbearance agreement with the Second Circuit that prevented
removal of Petitioner while his stay request was pending. (ECF No. 24-1 at 6.) Consequently,
Petitioner’s Zathydas period was tolled while Petitioner’s stay request was pending. See Brodyak,
2015 WL 1197535, at *3 That stay request was denied on July 30, 2015, at which time the
Zadvydas period began to run again. As of the date of this Opinion, the Zadvydas six-month period
has not fully run, thus precluding the Court from granting habeas.
Even if the Zadvydas six-month period had run, Petitioner is not entitled to relief because
Petitioner does not “provide good reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. In fact, in his Reply,
Petitioner does not appear to argue removal is unlikely. Instead, relying on case law addressing
pre-removal-order detention, Petitioner argues he is neither a danger to society nor a flight risk.
(See ECF No. 25 at 2-5.) As Zathydas makes clear, however, that is not the standard applicable
to post-removal-order detention. Petitioner further argues that “respondent’s brief utterly fails to
substantiate its assertion that the petitioner will be deported in the reasonably foreseeable future.”
(Id. at 2.) Again, Petitioner misstates the law. Zadvydas requires Petitioner to bear the initial

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burden of proof to show removal is reasonably unlikely; it does not require Respondent to show
that removal is reasonably likely in the first instance.
Nevertheless, even though he has no obligations to do so, Respondent has provided
affirmative evidence that removal is reasonably likely in the foreseeable future. Respondent
submitted an affidavit from an immigration official, stating travel documents have been requested
from Petitioner’s home country, and Petitioner will be removed if and when the request for stay is
denied. (ECF No. 24-1 at 6.) Petitioner does not seem to dispute these facts in his Reply.
Therefore, the Court finds Petitioner’s continued detention is presumptively reasonable and, even
if it is not, Petitioner has failed to show removal is unlikely in the reasonably foreseeable future.
Accordingly, the Court denies relief.
III.

CONCLUSION

For the reasons set forth above, the Petition is DENIED.

C
Chifi C. Cecchi, U.S.D.J.

Dated:

lr

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