CALLENDER v. AVILES et al

Filing 7

OPINION. Signed by Judge Jose L. Linares on 7/14/2016. (nr, )

UNITED STATES DISTRICT COURT
DISTRICT Of NEW JERSEY

DEJUAN CALLENDER,

Civil Action No. 15-8579 (JLL)

Petitioner,
v.

OPINION

OSCAR AVILES, et al.,
Respondents

LINARES, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Dejuan
Callender, pursuant to 28 U.S.C.

§ 2241. (ECF No. 1, 3). The Government has filed a response

to the petition (ECF No. 4), to which Petitioner has replied (ECF No. 5). for the reasons set
forth below, this Court will deny the petition without prejudice.

I. BACKGROUND

Petitioner, Dejuan Callender, is a native and citizen of Barbados who entered this county
and became a lawful permanent resident in 1979. (ECF No. 1 at 5). Following several criminal
convictions, Petitioner applied for admission when returning to this country from abroad on April
15, 2004. (Document 2 attached to ECF No. 4 at 4). Based on his prior convictions, Petitioner
was denied admission at that time and charged with being inadmissible and placed into removal
proceedings by immigration officials.

(Id.).

Petitioner thereafter applied for cancellation of

removal. (Id.). On June 21, 2005, the immigration judge assigned to Petitioner’s case denied
Petitioner’s application for cancellation of removal and ordered Petitioner removed. (Id. at 11).
Petitioner appealed, and the BIA affirmed the immigration judge’s decision on December 28,

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2006. (Document 2 attached to ECF No. 4 at 2-3). Petitioner was thus subject to a final order of
removal as of December 28, 2006.
Petitioner, however, was not taken into custody following the BIA’s order, but instead
remained at large until July 1, 2015. (ECF No. 1 at 6). On that date, Petitioner was “arrested and
detained” by “ICE fugitive Operations officers

.

.

.

pursuant to his final administrative order of

removal.” (Document 1 attached to ECF No. 4 at 2). On August 10, 2015, Petitioner requested a
stay of removal, which was denied by Immigrations and Customs Enforcement on or about
September 2, 2015. (Id.). Petitioner also requested that the Government join with him in a motion
to reopen his order of removal, which the Government refused in January 2016. (Id.). During his
period of detention, Petitioner has met with representatives of the consulate of Barbados on
multiple occasions. (Id. at 2-3; ECF No. 1 at 6). Although Petitioner was cooperative during at
least some of those meetings, Petitioner refused to speak with consular officials in the most recent
meeting, which apparently took place on January 27, 2016. (Document 1 attached to ECF No. 4
at 3; ECF No. 1 at 6). Despite this apparent refusal, counsel for Petitioner informed the Court on
March 16, 2016, that “the Barbados Consulate has secured a travel document” for Petitioner. (ECF
No. 6). As of the current date, Petitioner has been detained for approximately one year following
his arrest by Fugitive Operations officers.
Petitioner filed this habeas petition on or about December 11, 2015.

(ECF No. 1).

Petitioner also filed abriefin support of his petition on January 14, 2016. (ECF No. 3). Following
this Court’s order to answer, the Government filed its response on february 1, 2016. (ECF No.
4). Petitioner filed his reply brief on february 3, 2016. (ECF No. 5).

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II. DISCUSSION
A. Legal Standard

Under 28 U.S.C.

§ 2241(c), habeas relief may be extended to a prisoner only when he “is

in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

§

224 1(c)(3). A federal court has jurisdiction over such a petition if the petitioner is “in custody”
and the custody is allegedly “in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C.

§ 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). As Petitioner is

currently detained within this Court’s jurisdiction, by a custodian within the Court’s jurisdiction,
and asserts that his continued detention violates due process, this Court has jurisdiction over his
claims. Spencer v. Lemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Cottrt, 410 U.S.
484, 494-95, 500 (1973); see also Zadvydas v. Davis, 533 U.S. 678, 699 (2001).

B. Analysis

The parties agree that Petitioner’s current detention, to the extent that it is lawful, arises
out of 8 U.S.C.

§ 123 1(a) as Petitioner has been subject to a final order of removal since the BTA

denied his appeal in December 2006.

The lawfulness of Petitioner’s detention is therefore

controlled by the Supreme Court’s decision in Zathydas, 533 U.s. at 701. In Zadvydas, the Court
observed that

§ 1231 requires the Government to detain an alien throughout the ninety-day

statutory removal period. Id. at 683. The Zathydas Court also recognized that removable aliens
may be detained beyond the statutory removal period so long as the alien’s continued detention is
“reasonably necessary” to effectuate the alien’s removal.

Id. at 689, 699.

Based on these

observations, and in the interest of streamlining the process of reviewing immigration habeas

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petitions, the Court in Zathydas held that the detention of an alien for a period of up to six months
following a final order of removal is presumptively reasonable under

§ 1231(a).

Id. at 701.

Under Zathydas, it is only after this six month period has passed that an alien may
challenge his continued detention by showing that there is “no significant likelihood of removal in
the reasonably foreseeable future.” Id. In order to show that he is entitled to habeas relief from
such detention, a petitioner must “provide[] good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future,’ after which the Government ‘must
respond with evidence sufficient to rebut that showing.” Alexander v. Att ‘y Gen., 495 F. App’x
274, 276 (3d Cir 2012) (quoting Zadvydas, 533 U.S. at 701). “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.” Id. at 27677.

In his habeas petition, Petitioner initially argues that the Government is not entitled to any
presumption of reasonableness regarding his post-final order detention because he was not taken
into custody until some nine years after his order of removal became final. Petitioner argues that
because he was not immediately detained, the presumptively reasonable six month period began
to run during his 90-day removal period, and expired in the spring of 2007 when six months had
passed from the BIA’s denial of his appeal. As such, he argues, his detention was subject to review
under Zathydas ab initio, and his detention for a further one year is unreasonable.
While Petitioner is correct that the ninety day statutory removal period began with the
denial of his appeal to the BIA in December 2006, and that the statute required immigration
officials to take him into custody at that time, see 8 U.S.C.

§ 123 I(a)(l)(B), it does not follow from

that fact that Petitioner is entitled to release. Initially, this Court notes that Petitioner was taken

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into custody in July 2015 afler he was arrested by ICE’s fugitive Operations officers. The
implication of course being that at least part of the reason Petitioner was not previously detained
by immigration officials was because Petitioner was a fugitive from those officials. The current
state of the record does not make it abundantly clear at what point immigration officials first began
seeking to detain Petitioner, nor whether Petitioner prevented his being taken into custody in
December 2006 by flight or other means.
To the extent that Petitioner’s detention was prevented by his apparent fugitive status, this
Court notes that 8 U.S.C.

§ 123 l(a)(l)(C) would be implicated. Under that statute, which the

Zadvydas Court did not expressly limit or otherwise impugn, the running of the 90 day removal
period is essentially tolled where the petitioner “fails or refuses to make timely application in good
faith for travel or other documents necessary to [his] departure or conspires or acts to prevent the
alien’s removal subject to an order of removal.” $ U.S.C.

§ 123 l(a)(1)(C); see also Resit v.

Hendricks, No. 11-2051,2011 WL 2489930, at *5 (D.N.J. June 21, 2011). Thus, where an alien
is himself responsible for the Government’s inability to detain and remove him during the removal
period, he “cannot demand his release upon expiration of’ the six month presumptively reasonable
period established in Zadvydas as a detainee cannot reasonably argue that there is no significant
likelihood of his removal in the reasonably foreseeable future where he himself is the obstacle
blocking his removal and he therefore “controls the clock.” Resit, 2011 WL 2489930 at *5; see
also Fe/ic/i v. INS, 329 f.3d 1057, 1060 (9th Cir. 2003). Because it is unclear from the record how
much of the nine year gap between Petitioner’s final order of removal and his arrest and detention
by immigration officials was the result of Petitioner’s own actions, this Court cannot determine
how much of that time would in turn be quasi-tolled by

§ 123 1(a)(1)(C). Even if none of that time

were quasi-tolled, however, it does not follow that the failure to take Petitioner into custody for

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nine years in and of itself robbed immigration officials of the authority to detain Petitioner for a
reasonable period of time. Cf Sylvain v. Attorney Gen. of the United States, 714 F.3d 150, 157-

160 (3d Cir. 2013) (holding that the failure to take an alien into custody immediately upon release
under $ U.S.C.

§ 1226(c) does not rob authorities of the right to detain him even where several

years pass between the event triggering the authority to detain him and his being arrested).
Even assuming without deciding that the Government was not entitled to a six-month
presumptively reasonable period of detention in Petitioner’s case, Petitioner is not entitled to
release at this time based on the information currently before the Court because Petitioner has
failed to present evidence which would give this Court “good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future.”

Zadvvdas, 533 U.S. at

701; Alexander, 495 F. App’x at 276. Here, the Government has indicated that Petitioner has met
with the Barbados consulate on multiple occasions, and the Government had every expectation
that a travel document would be provided to Petitioner. (Document 1 attached to ECF No. 4 at 13). The Government likewise indicates that Petitioner will be removed from this country with all
due speed upon the arrival of that travel document. (Id. at 3). As Petitioner’s own counsel has
since informed the Court, the Barbados Consulate has, indeed, provided a travel document for
Petitioner.
The facts presented by Petitioner’s case therefore show that it is very likely that Petitioner
will be removed from the United States in the reasonably foreseeable future. Petitioner provides
no evidence other than the length of his detention in support of his contention that he will not soon
be removed. The provision of a travel document by Petitioner’s home country clearly indicates
otherwise. To the extent that Petitioner argues that the Government’s failure to acquire a document
prior to his arrest indicates that Petitioner’s removal is unlikely, that argument ignores both the

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fact that Petitioner’s cooperation was necessary to acquire a travel document and the fact that a
travel document has now been acquired. As Petitioner has been issued a travel document, and as
the Government has indicated that he will be removed expeditiously upon delivery of the travel
document, the facts of this case establish that Petitioner will very likely be removed in the near
future, and Petitioner has therefore failed to show that he is entitled to relief under Zadvydas. 533
U.S. at 701; see also Alexander, 495 F. App’x at 276. This Court will therefore deny Petitioner’s
petition for a writ of habeas corpus without prejudice.

III. CONCLUSION

For the reasons stated above, this Court will deny Petitioner’s petition for a writ of habeas
corpus (ECF No. 1) without prejudice. An appropriate order follows.

Jose L. Linares,
States District Judge

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