VELASQUEZ v. CASTILLO
Filing
2
OPINION. Signed by Judge Esther Salas on 2/9/2016. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOSE ALBEIRO MEJIA VELASQUEZ,
Civil Action No. 16-28 (ES)
Petitioner,
OPINION
v.
TISH CASTILLO,
Respondent.
SALAS, DISTRICT JUDGE
Petitioner Jose Albeiro Mejia Velasquez (“Petitioner”) is currently being detained by the
Department of Homeland Security, Immigration and Customs Enforcement (“DHS/ICE”) at the
Hudson County Correctional Facility in Kearny, New Jersey, pending his removal from the United
States. On December 23, 2015, Petitioner filed the instant Petition for Writ of Habeas Corpus
under 28 U.S.C.
§
2241, in which he challenges his detention pending removal. (D.E. No. 1,
Petition (“Pet.”)). For the reasons stated below, this Court will deny the Petition.
I. BACKGROUND
Petitioner provides very limited information about his immigration proceedings. He was
ordered removed by an immigration judge on March 19, 2013 and taken into custody by ICE on
June 11, 2015. (Id.
¶ 1 1(a)-(b)).
Petitioner filed an appeal of the removal order to the Board of
Immigration Appeals (“BIA”) on March 19, 2013, and on March 24, 2015, the BIA affirmed the
decision of the immigration judge. (Id.
¶
11 (c)( 1), (4)). On April 14, 2015, Petitioner filed an
appeal with the Second Circuit, which remains pending. (Id.
¶ 11(d); Mefia-Velasquez v. Lynch,
No. 15-1208 (2d Cir. filed Apr. 14, 2015)). Petitioner also filed a motion for a stay ofhis removal,
which was denied on November 17, 2015. (Mejia-Velasquez, No. 15-1208, D.E. Nos. 23, 63).
In his Petition, Petitioner raises only one ground: “Petitioner has been detained by ICE for
more than 180 days and is therefore eligible for release on bond.” (Pet.
released from ICE custody. (Id.
¶
13). He is seeking
¶ 15).
II. DISCUSSION
A. Legal Standard
Under 28 U.S.C.
§ 2241(c), habeas relief “shall not extend to a prisoner unless..
.
[hje is
in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§
2241 (c)(3). A federal court has subject matter jurisdiction under § 2241 (c)(3) if two requirements
are satisfied: (1) the petitioner is “in custody,” and (2) the custody is alleged to be “in violation of
the Constitution or laws or treaties ofthe United States.” 28 U.S.C.
§ 2241 (c)(3); Maleng v. Cook,
490 U.S. 488, 490 (1989).
This Court has subject matter jurisdiction over this Petition under § 2241 because Petitioner
was detained within its jurisdiction, by a custodian within its jurisdiction, at the time he filed his
Petition, and because Petitioner asserts that his detention is not statutorily authorized.
See
Spencer v. Kemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Court ofKy., 410 U.S.
484, 494—95, 500 (1973); Zadvydas v. Davis, 533 U.S. 678, 689 (2001).
B. Analysis
Federal law sets forth the authority of the Attorney General to detain aliens in removal
proceedings, both before and after issuance of a final order of removal.
Title 8 U.S.C.
§
1226 governs the pre-removal-order detention of an alien.
Section
1226(a) authorizes the Attorney General to arrest, and to detain or release, an alien, pending a
decision on whether the alien is to be removed from the United States, except as provided in
subsection (c). Section 1226(a) provides, in relevant part
(a) Arrest, detention, and release
On a warrant issued by the Attorney General, an alien may be arrested and detained
pending a decision on whether the alien is to be removed from the United States.
Except as provided in subsection (c) of this section and pending such decision, the
Attorney General(1) may continue to detain the arrested alien; and
(2) may release the alien on(A) bond of at least $1,500 with security approved by, and containing conditions
prescribed by, the Attorney General; or
(B) conditional parole;....
8 U.S.C.
§ 1226(a).
Certain criminal aliens, however, are subject to mandatory detention pending the outcome
of removal proceedings, pursuant to 8 U.S.C.
§ 1226(c)(1), which provides:
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any offense covered in section
11 82(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in Section
1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section l227(a)(2)(A)(i) of this title on the basis of an
offense for which the alien has been sentence[d] to a term of imprisonment of at
least 1 year, or
(D) is inadmissible under section 1 182(a)(3)(B) of this title or deportable under
section 1 227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is released on parole,
supervised release, or probation, and without regard to whether the alien may be
arrested or imprisoned again for the same offense.
3
8 U.S.C.
§ 1226(c)(1).
“Post-removal-order” detention is governed by 8
u.s.c. §
123 1(a). Section 123 1(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.
8 U.S.C.
§ 1231 (a)( 1 )(B). “An order ofremoval made by the immigration judge at the conclusion
of proceedings
.
.
.
shall become final
.
.
.
[u]pon dismissal of an appeal by the Board of
Immigration Appeals.” 8 C.F.R.
§ 1241.1(a). During the removal period, “the Attorney General
shall detain the alien.” 8 U.S.C.
§ 123 1(a)(2). Section 123 1(a)(6) permits continued detention
if removal is not effected within 90 days.
The Supreme Court held in Zadiydas that Section 123 1(a)(6) does not authorize the
Attorney General to detain aliens indefinitely beyond the removal period, 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.” 533 U.S. 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 Section 2241, the alien must provide good
reason to believe that there is no significant likelihood of removal in the reasonably foreseeable
future. Id.
Specifically, the Supreme Court determined that:
[ajfier 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
4
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.
Here, by Petitioner’s own admission, and based on a review of the Second Circuit’s docket
in Petitioner’s immigration matter, the BIA dismissed the appeal of Petitioner’s removal order and
no court has ordered a stay of his removal. Therefore, Petitioner’s order of removal became
administratively final on March 24, 2015, the date of the BIA’s decision.
1231 (a)(1 )(B); 8 C.F.R.
§
See 8 U.S.C.
§
1241.1(a). Petitioner was thereafter taken into ICE custody on June 11,
2015.
Whether the Court uses the date the removal order became administratively final (March
24, 2015) or the date ICE took Petitioner into custody (June 11, 2015) as the start date to calculate
the presumptively reasonable six month detention period, Petitioner is not entitled to relief.
Though the six-month presumptively reasonable detention period has expired using either date,
the Zathydas Court emphasized that “[t]his 6-month presumption {] does not mean that every alien
not removed must be released after six months.”
Zadvydas, 533 U.S. at 701.
Rather, the
Supreme Court explained that, to state a claim for habeas relief under Section 2241, an alien must
provide in the petition good reason to believe that his or her removal is not foreseeable. Id.
Petitioner has not made such a showing here. He has provided no indication that his removal is
not reasonably foreseeable and in fact does not address this aspect of the Zadvydas holding at all.
Under these circumstances, Zathydas does not require DHS to respond by showing that removal
is foreseeable. Id. (“After this 6-month period, once the alien provides good reason to believe
5
that there is no significant likelthood of removal in the reasonably foreseeable future, the
Government must respond with evidence sufficient to rebut that showing.”); see also Barenboy v.
Attorney Gen. of US., 160 F. App’x 258, 261 n.2 (3d Cir. 2005) (“Once the six-month period has
passed, the burden is on the alien to provide[] good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future.
.
.
.
Only then does the burden shift
to the Government, which must respond with evidence sufficient to rebut that showing.” (citation
and internal quotation marks omitted)); Joseph v. United States, 127 F. App’x 79, 81 (3d Cir. 2005)
(“Under Zadvydas, a petitioner must provide ‘good reason’ to believe there is no likelihood of
removal, and [petitioner] has failed to make that showing here.” (citation omitted)).
Accordingly, Zathydas requires this Court to dismiss the Petition without ordering the
government to respond, as Petitioner has not alleged facts showing that his detention violates the
Constitution, laws, or treaties of the United States. This denial is without prejudice to the filing
of a new Section 2241 petition (in a new case), in the event that Petitioner can allege facts, at the
time of filing, showing good reason to believe that there is no significant likelihood of his removal
in the reasonably foreseeable future.
IV. CONCLUSION
For the reasons set forth above, the Petition will be denied without prejudice.
appropriate order follows.
Dated:
9
’
7
Est SalascD.J.
6
An
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?