TANG v. GREEN

Filing 4

OPINION fld. Signed by Judge Kevin McNulty on 10/20/15. (sr, )

UNITED STATES DISTRICT COURT
I)ISTRICT OF NEW JERSEY
CHOP NGOUT TANG,
Petitioner,

Civ. No. 15-7 101 (KM)

V.

OPiNION
CHARLES GREEN,
Respondent.

KEVIN MCNULTY, U.SJ).J.
1.

INTRODUCTION

The petitioner, Chop N gout Tang, is an immigration detainee at the Essex County

Correctional Facility in Newark, New Jersey. He is proceeding pro se with a petition for writ of
habeas corpus pursuant to 28 U.S.C.

§ 2241.

On September 30, 2015, this Court administratively

terminated this case as Mr. Tang had not paid the $5.00 filing fee nor had he submitted an
application to proceed informapauperis. On October 15, 2015, this Court received Mr. ‘fang’s
$5.00 filing fee. Therefore, the Clerk will be ordered reopen this case. For the following reasons,
the habeas petition will be summarily dismissed without prejudice.
II.

BACKGROUND

Mr. ‘fang is a native and citizen of South Sudan. In 2011, Mr. ‘fang was convicted to a
criminal offense. I-Ic was ordered removed on May 9, 2012. He was placed into immigration
detention on June 12, 2015. He asserts that the length of time he has remained in detention, now
totaling over 4 months, is excessive, and he seeks release.
Ill.

LEGAL STANI)ARI): SUA SPONTE I)ISMISSAL

Title 28, U.S Code, Section 2243 provides for an initial screening of a habeas petition:

A court, justice or judge entertaining an application for a writ of
habeas corpus shall forthwith award the writ or issue an order
directing the respondent to show cause why the writ should not be
granted, unless it appears from the application that the applicant or
person detained is not entitled thereto.
‘1A1 district court is authorized to dismiss a [baheasi petition summarily when it plainly appears
from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to
relief in the district court.” Lonchar v. Thomas, 517 U.S. 314, 320 (1996).
IV.

I)ISCUSSION

Title 8 of the United States Code Section 123 l(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)(l)(A). 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 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.
Id.

§ 123 l(a)(l)(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
(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
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required voluntary department bond within 5 business days. lithe
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 123 l(aX2) requires that the alien he detained during the ninety-day

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

§ 123 l(a)(2). lithe alien is not removed during that

§ 1 23 1 (a)(6) authorizes either continued detention or release on bond:

An alien ordered removed who is inadmissible under section 1982
olthis title, 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
he 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 he subject to the terms of supervision in paragraph
(3).
8 U.S.C.

§ 1231(a)(6).

In Zadvydas v. Davis, 533 U.S. 678 (2001), 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 habeas 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 future. See Zadvydas, 533 U.S. at 689. “Zadvydas does not delineate the
boundaries of evidentiary sufficiency, but it suggests 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 Stales, 495 F. App’x 274, 276—77 (3d Cir. 2012) (per
curiam) (citing Zaclvydas, 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
Zadvydas, 533 U.S. at 701.

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§ 1 23 1 (a)(6). See

Mr. lang is not now entitled to federal habeas relief; he has been in post-removal
immigration detention for a little more than thur months. ‘Therefore, he is still within the
presumptively reasonable six-month period of post-removal immigration detention set forth in

Zudvydas. lie points to no special circumstances or facts indicating that there is no likelihood of
removal in the near future. Accordingly, his challenge to his post-removal immigration detention
is premature and will be summarily dismissed without prejudice. Accord Grosset! v. Muller, No.
13-0364, 2013 WL 6582944, at *3 (D.N.J. I)ec. 13, 2013) (noting Zadvydas claim is premature if
filed prior to expiration of six-month presumptively reasonable removal period); Abdou v.
Liwood, No. 12-7720, 2013 WL 1405774, at *4 (I).N.J. Apr. 4,2013) (same). Should the United
States fail to execute the order of removal within a reasonable time, such a claim may be
reasserted.
V.

CONCLUSION

For the thregoing reasons, the habeas petition is summarily dismissed without prejudice.
An appropriate order will he entered.
1)ated: October 20, 2015

/c____:_

/t4’j’_../

KEVIN MCNULTY
United States District Judge

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