CARDONA v. GREEN

Filing 7

OPINION. Signed by Judge Kevin McNulty on 1/9/17. (DD, ) N/M

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RAUL CARDONA,
Civ. No. 16-6846 (KM)

Petitioner,
V.

OPINION

CHARLES GREEN,
Respondent.

MCNULTY. U.S.D.J.
I.

INTRODUCTION

Petitioner, Raul Cardona, is an immigration detainee currently lodged at the Essex
County Correctional Facility in Newark, New Jersey. He is proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C.

§ 2241. For the following reasons, the habeas

petition will be denied without prejudice.
II.

BACKGROUND

Mr. Carciona is a native and citizen of Guatemala. He entered the United States in 1996.
On April 5, 2016, he was placed into immigration detention after a notice to appear was issued
stating that Mr. Cardona was not admitted or paroled after inspection by an immigration officer.
Subsequently, the Department of Homeland Security issued an additional charge of
inadmissibility because Mr. Cardona was convicted in 2012 of aggravated assault in New Jersey.
On September 21, 2016, Mr. Cardona was ordered removed by an Immigration Judge
(“IJ”). It does not appear that Mr. Cardona filed an appeal of that removal order to the Board of
Immigration Appeals (“BIA”).’
Mr. Cardona states in his habeas petition that there is an appeal pending before the BIA. The
respondent represents to this Court that, according to the BIA Clerk’s Office, there is no record

Mr. Cardona filed this habeas petition in October, 2016. He requests his immediate
release from immigration detention or, alternatively, that this Court order a bond hearing before
an IJ. The respondent filed a response in opposition to the habeas petition on December 5, 2016.
Respondent states that Mr. Cardona is no longer in pre-removal immigration detention as the IJ
ordered him removed in September, 2016, and Mr. Cardona did not file an appeal to the BIA.
Furthermore, respondent argues that Mr. Cardona’s detention is legal under the relevant postremoval immigration detention authority. Mr. Cardona did not file a reply in support of his
habeas petition.
III.

DISCUSSION

A. Pre-removal Immigration Detention
Mr. Cardona seeks his release from immigration detention or that this Court order a bond
hearing because of the length of time he has been in immigration detention. The Attorney
General has the authority to detain aliens in removal proceedings before the issuance of a final
order of removal. This period of detention is known as the “pre-removal” period. Detention of an
alien in the pre-removal period is governed by Section 1226 of Title 8 of the United States Code.
See also Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011) (period of pre-removal
detention must be reasonable); Chavez—Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 474
(3d Cir. 2015) (under Diop, after six months, and certainly within a year, the burden to the
petitioner’s liberties would outweigh any justification to detain the petitioner without a bond
hearing).
This Court need not engage in a Diop/Chavez—Alvarez analysis at this time with respect
to Mr. Cardona’s immigration detention. As respondent notes, an IJ ordered Mr. Cardona
of a pending appeal. Mr. Cardona has not filed a reply or come forward with any documentary
evidence to support his claim that he filed an appeal with the BIA. For purposes of this Opinion,
then, I will presume that no BIA appeal is pending.
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removed on September 21, 2016, and Mr. Cardona did not file an appeal to the BIA with the
thirty day period allotted. See 8 C.F.R.

§

1003.3 8(b) (deadline to appeal to the BIA is thirty

days). Accordingly, Mr. Cardona is no longer in pre-order removal immigration detention, but is
now in post-order removal immigration detention. See 8 C.F.R.

§

1241.1(c) (a final order of

removal becomes final when time to file appeal to the BIA expires and respondent has not filed
an appeal within that time).
B. Post-removal Immigration Detention
Post-removal immigration detention, like pre-removal immigration detention, can
become excessive at some point. Title 8 of the United States Code Section 123 1(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 l(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.

§

1231 (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 file an appeal within that time;
(d) If certified to the Board or Attorney General, upon the date of
the subsequent decision ordering removal; or

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(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
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. Section 123 1(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 l227(a)(1)(C), l227(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 1(a)(6).

In Zathydas 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 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’ Alexander
v. Attorney Gen. United States, 495 F. App’x 274, 276-77 (3d Cir. 2012) (citing Zadvydas, 533
U.S. at 701). As a rule of thumb, the Supreme Court stated, six months is a presumptively
reasonable period of post-removal detention under
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§

123 l(a)(6). See Zadvydas, 533 U.S. at 701.

_______________________

Mr. Cardona’s post-removal immigration detention began on October 22, 2016. Thus, the
ninety-day mandatory detention period set forth in Section 123 1(a)(l)(A) has not yet expired.
Furthermore, Mr. Cardona is still clearly within the within the presumptively reasonable sixmonth period of post-removal immigration detention set forth in Zadvydas. Therefore, to the
extent that Mr. Cardona could challenge his post-removal-order immigration detention, such a
challenge is premature and will be denied without prejudice. Accord Grossett v. Muller, No. 13—
0364, 2013 WL 6582944, at *3 (D.N.J. Dec.13, 2013) (noting Zadiydas 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 United
States fail to execute the order of removal within a reasonable time, a claim by Mr. Cardona
challenging his post-removal immigration detention may be reasserted.
IV.

CONCLUSION

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

DATED: January 9, 2017
KE [NMCNUL Y
United States District Judge

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