SINGH v. GREEN
OPINION. Signed by Judge Susan D. Wigenton on 8/30/2017. (JB, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 16-6739 (SDW)
WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner,
Parminder Singh, filed pursuant to 28 U.S.C. § 2241. (ECF No. 1). Following an order to answer,
the Government filed a response to the petition (ECF No. 3), as well as several updates. (ECF Nos.
5-6, 8). Petitioner did not file a reply. For the reasons set forth below, this Court will dismiss the
petition without prejudice as premature.
Petitioner, Parminder Singh, is a native and citizen of India who was detained upon his
attempt to enter the United States on December 3, 2015. (ECF No. 1 at 5). Upon his attempt to
enter the country, Petitioner was discovered to be an alien who was “not in possession of a valid
unexpired immigrant visa” or other valid travel document authorizing his entry into the United
States. (Id.). He was therefore taken into custody without being admitted into the United States
and was placed into removal proceedings. (Id.). Petitioner remained detained throughout those
proceedings, and apparently remains detained at this time. (Id.).
On or about October 6, 2016, Petitioner filed his current habeas petition challenging his
ongoing immigration detention. (Id.). While this matter was pending, however, Petitioner was
ordered removed from the United States. (See Document 1 attached to ECF No. 3). Petitioner
appealed, and the Board of Immigration Appeals (“BIA”) dismissed his appeal by way of a written
opinion on March 27, 2017. (Id.). Petitioner thereafter filed a petition for review with the Third
Circuit, accompanied by a motion for a stay of removal pending the resolution of his petition for
review. (See Document 2 attached to ECF No. 6). Although that motion for a stay was temporarily
granted pursuant to a standing order of the Third Circuit (id.), a Third Circuit motions panel
reviewed the temporary stay on June 15, 2017. (Document 1 attached to ECF No. 8). In its order,
the motions panel “rescinded” and vacated the temporary stay and denied Petitioner’s motion for
a stay of removal on the merits as Petitioner had “not shown that he is likely to succeed on the
merits.” (Id.). Petitioner’s appeal apparently remains pending before the Third Circuit at this time.
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. §
2241(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. Kemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Court, 410 U.S.
484, 494-95, 500 (1973); see also Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
In his petition, Petitioner contends that his continued detention pending the resolution of
his case violated Due Process as the length of his detention had become unreasonable. In order to
evaluate that claim, the Court must first ascertain the statutory basis for Petitioner’s detention. It
appears in this matter that, because Petitioner was stopped during his attempt at entering this
country and was not admitted into the United States, Petitioner was initially held in this matter
pursuant to 8 U.S.C. § 1225, which governs the detention of aliens who are denied entry into the
United States as applicants for admission. While § 1225 may have initially controlled Petitioner’s
detention, because the BIA dismissed Petitioner’s appeal and because Petitioner’s motion for a
stay of removal was ultimately denied by the Third Circuit, Petitioner is currently subject to a final
order of removal and is therefore subject to detention pursuant to 8 U.S.C. § 1231. See 8 U.S.C.
§ 1231(a)(1)(B); Leslie v. Att’y Gen., 578 F.3d 265, 268-70 (3d Cir. 2012) (§ 1231 governs the
detention of aliens subject to a final order of removal not subject to a stay of removal).
Because Petitioner is subject to a final order of removal and has had his motion for a stay
of removal denied by the court of appeals, the propriety of Petitioner’s detention is controlled by
the Supreme Court’s decision in Zadvydas. Leslie, 578 F.3d at 268-70. In Zadvydas, the Supreme
Court observed that § 1231(a) commands the Government to detain all aliens subject to
administratively final orders of removal during a ninety day statutory removal period. 501 U.S. at
683. The Court also held that the statute does not limit post-removal order detention to this ninety
day period; instead the Court found that the statute permits the Government to detain aliens beyond
that ninety day period so long as their detention remains “reasonably necessary” to effectuate their
removal. Id. at 689, 699. Based on these determinations and the Court’s observations regarding
the ordinary course of removal proceedings, the Court in turn determined that an alien may be
detained under § 1231(a) for a period of up to six months following his final order of removal
during which his continued detention must be presumed to be reasonable and therefore
constitutionally permissible. Id. at 701. Thus, where a removable alien has been detained under
§ 1231(a) for less than six months following the entry of his final order of removal, his challenge
must be dismissed as premature. Id.
In this matter, Petitioner received a final order of removal when the BIA dismissed his
appeal on March 27, 2017. Even if this Court were to assume, arguendo, that the temporary stay,
which was ultimately vacated and rescinded by the Third Circuit, did not reset or otherwise toll
the statutory removal period, Petitioner’s post-final order detention has yet to crest the six month
presumptively reasonable period established by the Court’s ruling in Zadvydas.
Petitioner’s ongoing immigration detention is presumptively reasonable and his current habeas
petition must therefore be dismissed as premature.
For the reasons expressed above, this Court will dismiss Petitioner’s habeas petition
without prejudice as premature. An appropriate order follows.
Dated: August 30, 2017
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
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