TADJOUDINE v. RODRIGUEZ
OPINION. Signed by Judge Susan D. Wigenton on 05/08/2017. (ek)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 16-9327 (SDW)
WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Imorou
Tadjoudine, 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. 6). Petitioner did not file a reply. For the
following reasons, this Court will deny the petition without prejudice.
Petitioner, Imoou Tadjoudine, is a native and citizen of Benin who applied for admission
to this country at the Mexican border near Otay Mesa, California, in September 2015. (Document
1 attached to ECF No. 6 at 2). Because Petitioner was not entitled to admission as he was not in
possession of a valid visa, Petitioner was taken into immigration custody at that time and placed
in removal proceedings. (Id.). On September 27, 2016, an immigration judge entered a removal
order against Petitioner. (Document 4 attached to ECF No. 6). Petitioner appealed that decision
to the Board of Immigration Appeals, but the Board denied his appeal on February 8, 2017. (ECF
No. 6 at 1-2).
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 habeas petition, Petitioner contends that his continued immigration detention violates
Due Process. In order to address that claim, this Court must first determine the statutory basis for
his detention. While 8 U.S.C. § 1226(c), 1 the statute Petitioner contends controls this matter,
governs the detention of aliens who have been convicted of a crime prior to their 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. § 1231(a). Under § 1231(a), upon the entrance of a final order of removal
an alien enters a ninety day statutory removal period during which the Government is statutorily
As an arriving alien applying for admission (See Document 1 attached to ECF No. 6 at 2),
Petitioner was actually subject to detention pursuant to 8 U.S.C. § 1225 prior to his final order of
removal, not § 1226(c). Because Petitioner has now received a final order and is therefore detained
pursuant to § 1231(a), however, this distinction is immaterial to the matter at hand.
required to detain the alien. See 8 U.S.C. § 1231(a)(2); see also 8 U.S.C. § 1231(a)(1)(B)(ii).
Thus, once an alien is subject to a final order of removal, his detention is governed by § 1231,
unless and until he seeks review of his removal order by the Court of Appeals and is granted a stay
See 8 U.S.C. § 1231(a)(1)(B)(ii).
In this matter, Petitioner received an
administratively final order of removal when the Board denied his appeal on February 8, 2017,
and Petitioner entered his 90 day removal period upon that date as he has apparently not filed an
appeal and stay motion with the Court of Appeals. 8 U.S.C. § 1231(a)(1)(B)(1).
Because Petitioner is subject to a final order of removal, the propriety of his detention is
controlled by the Supreme Court’s decision in Zadvydas. 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 removal period. 501 U.S. at 683. The Court further held 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 statutory provisions, 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 not violative of Due Process.
Id. at 701. Thus, where a removable alien has been detained under § 1231(a) for less than six
months following the entry of a final order of removal against him, his challenge must be dismissed
as premature. Id.
In this matter, Petitioner received a final order of removal when the Board denied his appeal
on February 8, 2017. As fewer than six months have passed since the entry of Petitioner’s final
order of removal, Petitioner is still within the six month period during which his detention under
§ 1231(a) must be presumed to be reasonable. Id. As such, Petitioner’s current habeas petition is
premature, and must be dismissed as such.
For the reasons expressed above, this Court will dismiss Petitioner’s petition for a writ of
habeas corpus (ECF No. 1) without prejudice as premature. An appropriate order follows.
Dated: May 8, 2017
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
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