CHARLOT v. LYNCH et al

Filing 12

OPINION. Signed by Judge Kevin McNulty on 1/20/16. (DD, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

VILAIRE CHARLOT,
Civ. No. 15-7706 (KM)

Petitioner,
V.

OPINION

WARDEN CHARLES GREEN,
Respondent.

KEVIN MCNULTY, U.S.D.J.
I.

INTRODUCTION

The petitioner, Vilaire Chariot, is an immigration detainee at the Essex County
Correctional Facility in Newark, New Jersey. He is proceeding prose with a petition for writ of

§ 2241.

For the following reasons, the habeas petition will

II.

habeas corpus pursuant to 28 U.S.C.

BACKGROUND

be denied without prejudice.

Mr. Chariot is a native and citizen of Haiti. He initially entered the United States in 1991
on a non-immigrant visa with authorization to stay for up to six months, hut he remained in the
United States well past that authorized deadline. In 1998, he was convicted in Florida of burglary
with assault or battery therein while armed, robbery/carjacking/armed and aggravated
fleeing/high speed chase. Fle was sentenced to ten years of imprisonment on the first two counts
and five years on the third count. On March 26, 1999, Mr. Charlot was ordered removed from
the United States by an Immigration Judge (“IJ”). Mr. Chariot was removed on October 20,
2003.

On January 20, 2010, Mr. Chariot reentered the United States and identified himself as a
United States citizen. However, a biometric search revealed that Mr. Chariot had been removed
from the United States in 2003.
On July 7, 2010, Mr. Chariot was convicted Florida of the federal offense of falsely
claiming United States citizenship. On October 4, 2010, Immigration Customs Enforcement
(“ICE”) issued a notice of intent/decision to reinstate Mr. Chariot’s prior order of removal. It
does not appear, however, that Mr. Chariot was actually removed at that time; instead, he
remained within the United States.
On April 1, 2015, Mr. Chariot was arrested in New Jersey for simple assault. He has been
in immigration detention since that time.
On April 24, 2015, Mr. Charlot was served with an administrative Notice to Appear,
charging that he was admitted to the United States but is removable. Mr. Chariot was charged as
being: (1) a nonimmigrant who is not in possession of a valid nonimmigrant visa or border
crossing identification card; (2) “an alien who falsely represents, or has falsely represented,
himself or herself to be a citizen of the United States for a purpose or benefit under the
[Immigration and Nationality] Act”; and (3) an alien who has been convicted of an act which
constitute the essential elements of a crime involving moral turpitude (citing the 2010 conviction
for falsely claiming United States citizenship). (See Dkt. No. 10-5 at p. 5)
On December 23, 2015, an IJ ordered Mr. Chariot removed to Haiti. Mr. Chariot waived
his right to appeal the order of removal.
in October 2015, however—prior to the December 23, 2015 order of removal and waiver
of appeal—Mr. Chariot filed this federal habeas petition. The petition asserts that the length of
his detention at the time (approximately seven months) was excessive and violative of his due

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process rights. He requests his release from immigration detention or a bond hearing before a
neutral judge. The government submitted its response on January 8,2015. Mr. Chariot submitted
a letter to this Court dated January 11, 201 6, which this Court construes as his reply in his
support of his habeas petition.
IlL

DISCUSSION

Title 8 of the United States Code Section 123 l(a)(1)(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) 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.
Id.

§ 123 1(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 tile 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
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

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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 123l(a)(2) requires that the alien be detained during the ninety-day

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

§ 1231(a)(2). If the alien is not removed during that

§ 123 l(a)(6) authorizes either continued detention or release on bond:

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

In Zadvydas v. Davis, 533 U.S. 678 (2001), the United States Supreme Court held that

§

1231 (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 States, 495 F. App’x 274, 276—77 (3d Cir. 2012) (per
curiam)

(citing

Zadvydas, 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). See

Zadvydas, 533 U.S. at 701.
Mr. Chariot is not now entitled to federal habeas relief On December 23, 2015, the IJ
ordered him removed on December 23, 2015, and he waived his right to appeal. He has therefore
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_________________________

been in post-removal immigration detention for less than one month. He is still within the
mandatory ninety-day removal period, as well as the presumptively reasonable six-month period
of post-removal immigration detention set forth in Zadvydas.
Mr. Chariot’s habeas petition states in conclusory fashion that his removal is not likely to
occur in the reasonably foreseeable future. Fle provides no facts to support such a statement. Nor
does the short period of post-removal detention (one month) suggest such an inference that
removal cannot be accomplished promptly. See Ndrecaj v. Holder, No. 12-4176, 2012 WL
3133692, at *4 (D.N.J. July 21, 2012) (petitioner alleged no facts to support conclusion that there
is good reason to believe that there is no likelihood of removal in the reasonably foreseeable
future as required by Zadvydas). Accordingly, his challenge to his post-removal immigration
detention is premature and will be denied without prejudice. Accord Grossett v. Muller, No. 130364, 2013 WL 6582944, at *3 (l).N.J. Dec. 13, 2013) (noting Zadvydas claim is premature if
filed prior to expiration of six-month presumptively reasonable removal period); Abdou v.
Elwood, No. 12-7720, 2013 WL 1405774, at *4 (D.N.J. Apr. 4, 2013) (same). Should the Uniled
States fail to execute the order of removal within a reasonable time, such a habeas claim may be
reasserted.
IV.

CONCLUSION

For the foregoing reasons, the habeas petition will be denied without prejudice. An
appropriate order will be entered.

DATED: January 20, 2016
K VFN MCNULTY
United States District Judge

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