PORTES DEL RIO v. TSOUKARIS et al

Filing 2

MEMORANDUM AND ORDER that petitioners application to proceed informa pauperis is granted, and the habeas petition is dismissed with prejudice as to respondent John Tsoukaris. The Clerk shall serve a copy of the petition (Dkt. No. 1) and this Order upon respondent Green by regular mail, with all costs of service advanced by the United States and shall forward a copy of the petition (Dkt. No. 1) and this Order to the Chief, Civil Division, United States Attorneys Office, at the following e mail address: USANJ-HabeasCasesusdoj.gov. Within 30 days of the date of the entry of this Order, respondent shall file and serve an answer which responds to the allegations and grounds in the petition and which includes all affirmative defenses res pondent seeks to invoke, in addition to any other arguments respondent may make, the answer shall specifically address what impact, if any. Within 30 days of receipt of the answer, petitioner may file a reply to the answer, and seven (7) days of petitioners release, by parole or otherwise, respondent shall electronically file a written notice of the same with the Clerk; etc. Signed by Judge Kevin McNulty on 12/7/16. (sr, )(N/M)

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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY LUIS DAVID PORTES DEL RIO, Petitioner, Civ. No. 16-8721 (KM) V. JOHN TSOUKARIS, et a!, MEMORANDUM AND ORDER Respondents. Petitioner 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. Petitioner’s application to proceed informapauperis will be granted. The proper sole respondent in this case is Charles Green, who is the warden of the Essex County Correctional Facility. See Rumsfeld v. Padilla, 542 U.S. 426, 434-3 5 (2004). Therefore, the petition will be dismissed with prejudice as to respondent John Tsoukaris. Petitioner challenges his current immigration detention in his federal habeas petition amongst his arguments. “Federal courts have habeas jurisdiction to examine the statutory and constitutional bases for an immigration detention unrelated to a final order of removal.” Ufele v. Holder, 473 F. App’x 144, 146 (3d Cir. 2012) (citing Demore v. Kim, 538 U.S. 510, 5 17-18 (2003)); see also Diop v. ICE/Homeland Sec., 656 F.3d 221, 226 (3d Cir. 201 1). In accordance with Rule 4 of the Rules Governing Section 2254 Cases, applicable to § 2241 cases through Rule 1(b) of the Rules Governing Section 2254 Cases, this Court has screened the habeas petition for dismissal and determined that dismissal without an answer and the record on this issue is not warranted. In addition to any arguments that respondent may make in the answer in response to petitioner’s claims, respondent shall specifically address what impact, if any, Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469 (3d Cir. 2015) has on the habeas petition. Accordingly, IT IS this 7th day of December, 2016, ORDERED that the habeas petition is dismissed with prejudice as to respondent John Tsoukaris; and it is further ORDERED that petitioner’s application to proceed informa pauperis is granted; and it is further ORDERED that the Clerk shall serve a copy of the petition (Dkt. No. 1) and this Order upon respondent Green by regular mail, with all costs of service advanced by the United States; and it is further ORDERED that the Clerk shall forward a copy of the petition (Dkt. No. 1) and this Order to the Chief, Civil Division, United States Attorney’s Office, at the following email address: USANJ-HabeasCasesusdoj.gov; and it is further ORDERED that within thirty (30) days of the date of the entry of this Order, respondent shall file and serve an answer which responds to the allegations and grounds in the petition and which includes all affirmative defenses respondent seeks to invoke, in addition to any other arguments respondent may make, the answer shall specifically address what impact, if any, Chavez-Alvarez i’. Warden York Cnty. Prison, 783 F.3d 469 (3d Cir. 2015) has on the petition; and it is further ORDERED that respondent shall file and serve with the answer certified copies of all documents necessary to resolve petitioner’s claim(s) and affirmative defenses; and it is further ORDERED that within thirty (30) days of receipt of the answer, petitioner may file a reply to the answer; and it is further 2 ORDERED that within seven (7) days of petitioner’s release, by parole or otherwise, respondent shall electronically file a written notice of the same with the Clerk; and it is further ORDERED that the Clerk shall serve this Order on petitioner by regular U.S. mail. KEVTN MCNULTY United States District Judge 3 )

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