ORTEZ v. RODRIGUEZ et al
Filing
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OPINION. Signed by Judge Kevin McNulty on 3/3/2017. (JB, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARCIO RAFAEL ORTEZ,
Petitioner,
Civ. No. 16-9359 (KM)
V.
ORLANDO RODRIGUEZ,
OPINiON
Respondent.
KEVIN MCNULTY, U.S.D.J.
I.
INTRODUCTION
The petitioner, Marcio Rafael Ortez, is an immigration detainee currently lodged at the
Elizabeth Detention Center in Elizabeth, 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.
Mr. Ortez is a native and citizen of Honduras. He entered the United States in 1986. In
2007, Mr. Ortez was convicted in New Jersey of marijuana distribution. On February 16, 2016,
he was placed into immigration detention.
On October 14, 2016, Mr. Ortez was ordered removed to Honduras by an Immigration
Judge (“IJ”). Mr. Ortez then filed an appeal of that removal order to the Board of Immigration
Appeals (“BIA”). On February 15, 2017, the BIA dismissed Mr. Ortez’s appeal of the IJ’s
removal order.
While the B1A appeal was pending, in December 2016, Mr. Ortez filed this federal
habeas petition. The petition requests his immediate release from immigration detention or,
alternatively, that this Court order a hearing in which respondent would be required to
demonstrate that his continued detention is justified. The respondent filed his opposition to the
habeas petition on January 27, 2017. Mr. Ortez did not file a reply within the time allotted.
It was only thereafter, on February 27, 2017, that this Court received a letter from
respondent disclosing that the BIA had dismissed Mr. Ortez’s appeal from the IJ’s removal order
on February 15, 2017. Because the appeal is now final, Mr. Ortez is no longer in pre-removal
immigration detention, but I nevertheless consider the petition under the standards governing
post-removal detention.
II.
DISCUSSION
A. Pre-removal Immigration Detention
Mr. Ortez 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.
Section 1226(a) permits the Attorney General to detain or release an alien pending a decision on
whether the alien is to be removed from the United States:
On a warrant issued by the Attorney General, an alien may be
arrested and detained pending a decision on whether the alien is to
be removed from the United States. Except as provided in
subsection (c) of this section and pending such decision, the
Attorney General—
(1) may continue to detain the arrested alien; and
(2) may release the alien on—
(A) bond of at least $1,500 with security approved by, and
containing conditions prescribed by, the Attorney General;
(B) conditional parole;
8 U.S.C.
§ 1226(a). “Except as provided in subsection (c)” is included because, under Section
1226(c), certain criminal aliens are subject to mandatory pre-removal detention:
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The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any offense
covered in section 11 82(a)(2) of this title,
(B) is deportable by reason of having committed any offense
covered in section 1227(a)(2)(a)(ii), (A)(iii), (B), (C), or (D) of this
title,
(C) is deportable under section 1227(a)(2)(A)(i) of this title on the
basis of an offense for which the alien has been sentence to a term
of imprisomrlent of at least I year, or
(D) is inadmissible under section 11 82(a)(3)(B) of this title or
deportable under section 1227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is
release on parole, supervised release, or probation, and without
regard to whether the alien may be arrested or imprisoned again for
the same offense.
8 U.S.C.
§ 1226(c)(1).
Cases setting forth the framework for analysis of pre-removal detention include Diop v.
IC’E/Homeland Sec., 656 F.3d 221 (3d Cir. 2011), and C’havezAlvarez v. Warden York Cnty.
Prison, 783 F.3d 469, 474 (3d Cir. 2015). The Court need not engage in a Diop/Chavez—Alvarez
analysis at this time, however. Because the BIA has now dismissed Mr. Ortez’s appeal from the
IJ’s removal order, Mr. Ortez is no longer in pre-order removal immigration detention. See 8
C .F .R.
§ 1241 .1(a) (order of removal by IJ becomes final upon dismissal of appeal by the BIA).’
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 1231 (a)(1 )(A) states
While not necessarily applicable anymore as Mr. Ortez is no longer in immigration detention
pursuant to 8 U.S.C. § 1226(c), Mr. Ortez also argues that his detention is improper because he
was not immediately taken into immigration detention upon his release from custody on his
criminal conviction. Even if Mr. Ortez were still in pre-removal detention, his argument would
be foreclosed by binding Court of Appeals authority. In Sylvain v. Attorney General, 714 F.3d
150, 156-57 (3d Cir. 2013), the Third Circuit held that the government retains the authority to
take aliens into mandatory detention under § 1226(c) even if it does not do so immediately upon
their release from criminal custody. “{M]andatory detention does not require immediate
detention.” Id. at 156. “Even if the statute calls for detention ‘when the alien is released,’ and
even if ‘when’ implies something less than four years, nothing in the statute suggests that
immigration officials Lose authority if they delay.” id. at 157.
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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”).” JcL
§
123 1(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
(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 l(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
§
§
123 l(a)(2). If the alien is not removed during that
1231 (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 1 227(a)( 1 )(C), I 227(a)(2), or 1 227(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
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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 Zadvydas 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
i’.
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 that six months is a presumptively
reasonable period of post-removal detention under
§
123 l(a)(6). See Zadvydas, 533 U.S. at 701.
Mr. Ortez’s post-removal immigration detention began on February 15, 2017. Thus, the
ninety-day mandatory detention period set forth in Section 1231 (a)( 1 )(A) has not yet expired.
Furthermore, Mr. Ortez is still clearly within the presumptively reasonable six-month period of
post-removal immigration detention set forth in Zadvydas. Mr. Ortez’s challenge to his postremoval-order immigration detention is therefore premature, and will be denied without
prejudice. Accord Grosseit v. Muller, No. 13—0364, 2013 WL 6582944, at *3 (D.N.J. Dec.13,
2013) (noting Zadvydas 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
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__________________________
within a reasonable time, a claim by Mr. Ortez challenging his post-removal immigration
detention may be reasserted.
III.
CONCLUSION
For the foregoing reasons, the habeas petition will be dismissed without prejudice. An
appropriate order will be entered.
DATED: March 3, 2017
KEVIN MCNULTY
United States District Judge
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