BARTHELUS v. TSOUKARIS et al
OPINION. Signed by Judge John Michael Vazquez on 11/14/2016. (seb)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 16-4237 (JMV)
CHARLES L. GREEN,
Essex County Correctional Facility
354 Doremus Avenue
Newark, NJ 07105
on behalf of Petitioner
Mark Christopher Orlowski
Office of the U.S. Attorney
District of New Jersey
970 Broad Street, Suite 700
Newark, NJ 07101
on behalf of Respondent
VAZQUEZ, United States District Judge
On July 12, 2016, Petitioner, acting pro se, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 (ECF No. 1), challenging his prolonged pre-final removal order
detention by U.S. Immigration and Customs Enforcement (“ICE”).
On October 21, 2016,
Respondent filed a letter response to the petition, opposing relief on the basis that Petitioner is now
detained under 8 U.S.C. § 1231(a) because the Third Circuit Court of Appeals vacated Petitioner’s
temporary stay and denied his motion for stay of removal on October 14, 2016. (ECF No. 5 at 3.)
In his petition for habeas corpus relief pursuant 28 U.S.C. § 2241, Petitioner alleges he has
been in the custody of the U.S. Immigration and Customs Enforcement (“ICE”), and held in Essex
County Correctional Facility since June 23, 2015. (ECF No. 1 at 2.) Petitioner is a citizen of Haiti.
(Id.) He entered the United States in 1995. (Id.) On May 11, 2007, Petitioner was convicted of
possession with intent to distribute cocaine, in violation of N.J.S.A. 2C:35-5(a)(1). (Id. at 5.)
On June 23, 2015, Petitioner was taken into custody by ICE pursuant to 8 U.S.C. § 1226(c).
(Id.) Petitioner conceded, at the pleading stage, that he was removable because he was convicted
of a controlled substance violation, and that it was an aggravated felony. (Id. at 21.) The Board
of Immigration Appeals, on September 1, 2016, dismissed Petitioner’s appeal of the Immigration
Judge’s decision that he is removable and not entitled to asylum, withholding of removal or for
protection under the Convention Against Torture, including deferral of removal. (ECF No. 5 at
20-22.) On October 14, 2016, the Third Circuit vacated Petitioner’s temporary stay of removal,
and Petitioner’s detention is now post-final removal order and governed by 8 U.S.C. § 1231(a).
(ECF No. 5 at 3.)
Standard of Review
8 U.S.C. § 1226(c)(1) mandates that the Government “take into custody” aliens who are
convicted of certain crimes, including crimes related to controlled substances. Detention without
the possibility of bond “for a reasonable period of time” pursuant to § 1226(c) is constitutional.
Diop v. ICE/Homeland Sec., 656 F.3d 221, 223 (3d Cir. 2011). Section 1226(c) detention, without
a bond hearing, may raise constitutional concerns if detention becomes unreasonably prolonged.
When a petitioner’s removal order becomes final, his petition for relief from prolonged
pre-final removal order detention under 8 U.S.C. § 1226(c) is moot. Rodney v. Mukasey, 340 F.
App’x 761, 764 (3d Cir. 2009). “When an alien is ordered removed, the Attorney General shall
remove the alien from the United States within a period of 90 days . . .” 8 U.S.C. § 1231(a)(1)(A).
“During the removal period, the Attorney General shall detain the alien.” Id. § 1231(a)(2). 8
U.S.C. § 1231(a)(6) authorizes post-removal order detention of an alien convicted of an aggravated
felony for a reasonable period to bring about removal, generally for six months. Rodney, 340 F.
App’x at 764. After the six-month period, an alien may be conditionally released if he can
“demonstrate that there is ‘no significant likelihood of removal in the reasonably foreseeable
future.’” Id. (quoting Zadvydas v. Davis, 533 U.S. 678, 701 (2001)).
Petitioner’s claim for relief under 8 U.S.C. § 1226(c) is moot because he is no longer
detained pursuant to that statute. Petitioner’s present detention is governed by 8 U.S.C. § 1231(a).
The 90-day removal period began on October 14, 2016, and there is an additional six-month period
of reasonable removal detention. Therefore, Petitioner’s habeas petition, even it if is construed as
a request for relief under § 1231(a), is premature. See Rodney, 340 F. App’x at 765 (finding
petitioner’s challenge to detention under Zadvydas was premature where petitioner had sought
relief from detention under § 1226(c) and the statutory basis for his detention changed).
Petitioner’s request for habeas relief from detention under 8 U.S.C. § 1226(c) is moot; and
habeas relief from detention under 8 U.S.C. § 1231(a) is premature. Therefore, the Court will
dismiss the habeas petition as moot.
An appropriate Order follows.
Date: November 14, 2016
At Newark, New Jersey
s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge
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