JOSEPH v. GREEN
OPINION. Signed by Judge Jose L. Linares on 5/8/2017. (JB, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 16-8349 (JLL)
WARDEN CHARLES GREEN, et al.,
LINARES, District Judge:
Currently before the Court is the petition for a writ of habeas corpus of Petitioner, Fresnel
Joseph, filed pursuant to 28 U.S.C.
2241. (ECF No. 1, 6). Following an order to answer (ECF
No. 5), the Government filed two responses to the Petition. (ECF Nos. 13-14). Petitioner did not
file a reply. For the following reasons, this Court will dismiss the petition without prejudice as
Petitioner is a native and citizen of Haiti who applied for admission into this country on
March 6, 2016, at San Ysidro, California. (Document 2 attached to ECF No. 13 at 2). Because
Petitioner was not entitled to admission as he did not have a valid visa, Petitioner was taken into
immigration custody and placed into removal proceedings at that time. Petitioner has remained in
immigration detention since his arrival. (Id.). On November 21, 2016, an immigration judge
ordered that Petitioner be removed from the United States. (Document 3 attached to ECF No. 13).
Petitioner appealed, and the Board of Immigration Appeals dismissed his appeal on March 9, 2017.
(Document 1 attached to ECF No. 14 at 3). Petitioner has apparently not filed a petition for review
with the United States Court of Appeals.
A. Legal Standard
Under 28 U.S.C.
§ 2241(c), habeas relief maybe 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.” 2$ 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, 49495, 500 (1973); see also Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
In his petition, Petitioner contends that his continued immigration detention violates Due
Process as he has been held for a considerable period of time without receiving a bond hearing. In
order to examine that claim, this Court must first examine the statutory basis for Petitioner’s
detention. While 8 U.S.C.
§ 1225(b) governs the detention of an alien, such as Petitioner, who is
detained as an applicant for admission and who is not clearly entitled to be admitted into the United
States prior to the receipt of a final order of removal, once a final order of removal is issued an
alien is instead subject to mandatory detention under 8 U.S.C.
§ 123 1(a). Under § 123 1(a), the
Government is required to detain an alien subject to a final order of removal for ninety days afler
the issuance of the final removal order.
See $ U.S.C.
§ 1231(a)(2); see also 8 U.S.C. §
1231 (a)( 1 )(B)(ii). Detention during this ninety day removal period is mandatory. See Zadvydas,
533 U.S. at 683. Thus, once an alien is subject to a final order of removal, his detention is governed
§ 1231 unless and until he seeks review of his removal order by filing a petition for review with
the Court of Appeals and is granted a stay of removal. See 8 U.S.C.
§ 123 1(a)(1)(B)(ii). In this
matter, Petitioner received an administrative final order of removal on March 9, 2017, when the
Board dismissed his appeal, and Petitioner entered his 90 day removal period upon that date as he
has apparently not filed a petition for review nor sought a stay from the Court of Appeals. 8 U.S.C.
§ 1231 (a)( 1 )(3)(ii).
Because Petitioner is subject to a final order of removal and has not sought review or a stay
from the Court of Appeals, the propriety of his detention is controlled by the Supreme Court’s
decision in Zadvydas. As this Court recently explained,
In Zadvydas, the Court observed that § 1231(a) requires the Government to detain
all aliens subject to administratively final orders of removal during the statutory
ninety day removal period. 533 U.S. at 683. The Court further held that the
statute penTlits 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 statutory provisions, the Zadvydas Court
in turn held that an alien may be detained under § 123 1(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 not violative of Due
Process. Id. at 701. Thus, where a removable alien has been detained under §
1231 for less than six months following a final order of removal, his challenge
must be [dismissed] as premature. Id.
Tejada v. Rodriguez, No. 16-8874, 2017 WL 1591858, at *2 (D.N.J. May 1,2017).
In this matter, Petitioner received a final order of removal on March 9, 2017, and entered
his ninety day removal period at that time. As the ninety day removal period has not yet expired,
Petitioner is well within the six month presumptively reasonable period established by Zadvvdas.
As such, this Court is required to presume that Petitioner’s current detention is reasonable, and
Petitioner’s habeas petition must be dismissed at this time as premature.
for the reasons expressed above, this Court will dismiss Petitioner’s petition for a writ of
habeas corpus (ECF No. 1, 6) without prejudice as premature. An appropriate order follows.
States District Judge
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