KUMAR v. RODRIGUEZ

Filing 10

OPINION. Signed by Judge John Michael Vazquez on 5/15/17. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
PATEL HIREN KUMAR,
:
:
Civil Action No. 17-360 (JMV)
Petitioner,
:
:
v.
:
OPINION
:
ORLANDO RODRIGUEZ,
:
:
Respondent.
:
____________________________________:
APPEARANCES:
PATEL HIREN KUMAR
Elizabeth Detention Center
625 Evans Street
Elizabeth, NJ 07201
On behalf of Petitioner
SUSAN R. MILLENKY
U.S. Attorney’s Office
District of New Jersey
970 Broad St., Suite 700
Newark, NJ 07102
On behalf of Respondent
VAZQUEZ, United States District Judge
This matter comes before the Court upon the amended petition for a writ of habeas corpus
under 28 U.S.C. § 2241 by Petitioner Patel Hiren Kumar (ECF No. 5), and Respondent’s answer
and brief opposing the amended petition. (ECF No. 9.) For the reasons set forth below, the
amended petition is dismissed without prejudice.
I.

FACTUAL BACKGROUND

On April 14, 2014, the Department of Homeland Security issued a Determination of

Inadmissibility pursuant to 8 U.S.C. § 1225(b)(1), charging Petitioner as an immigrant not in
possession of a valid entry document. (ECF No. 9-1 at 3.) Petitioner is a native and citizen of
India who was detained by the United States Immigration and Customs Enforcement (“ICE”) and
applied for asylum on May 2, 2016. (ECF No. 1 at 3.) Petitioner also sought withholding of
removal and protection pursuant to the Convention against Torture. (ECF No. 9-1 at 3.)
On May 10, 2016, an Immigration Judge (“IJ”) denied Petitioner’s request for change in
custody status. (ECF No. 9-1 at 6.) On October 6, 2016, an IJ denied Petitioner’s application for
asylum, withholding of removal, and protection under the Convention against Torture, and ordered
him removed to India. (Id. at 8-9.) Petitioner appealed the order to the Board of Immigration
Appeals (“BIA”). (Id. at 11-14.) On January 18, 2017, Petitioner filed a petition seeking habeas
relief (ECF No. 1), and he filed an amended petition on March 21, 2017. (ECF No. 5.) The
following day, the BIA affirmed the IJ’s decision and dismissed the appeal. (Id.) Respondent
searched the PACER database for the Third Circuit Court of Appeals and found that Petitioner has
not appealed the BIA’s March 22, 2017 order, and his time for doing so has now expired. (ECF
No. 9 at 2); see 8 U.S.C. § 1252(b)(1) (“[t]he petition for review must be filed not later than 30
days after the date of the final order of removal.”)
II.
A.

DISCUSSION

Arguments

In his amended petition, Petitioner argued his prolonged mandatory detention by ICE since
May 2, 2016, violates his right to due process, pursuant to Diop v. ICE/Homeland Security, 656
F.3d 221, 223 (3d Cir. 2011). (ECF No. 5 at 1-3.) Respondent opposes habeas relief. (ECF No.
9 at 1.) Because the BIA has now issued a final order of removal, Respondent contends § 1226 no
longer governs Petitioner’s confinement, and his claim that his detention is unconstitutional

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pursuant to Diop is moot. (Id.) Petitioner has been subject to a final removal order since March
22, 2017. (Id. at 3, citing 8 U.S.C. § 1231(a)(1)(B)(i)). 1 The Government’s authority to detain
Petitioner is governed by the post-final removal order provision, 8 U.S.C. § 1231(a). (Id.)
Pursuant to 8 U.S.C. § 1231(a)(1)(a), the Attorney General must detain an individual with a final
order of removal for ninety days. (Id.) No court has stayed Petitioner’s removal, and he is not
subject to non-immigration detention. (Id.) Accordingly, Petitioner’s removal period is governed
by § 1231(a)(1)(B)(i), and began on the date the order of removal became administratively final,
March 22, 2017. (Id.) From that point, there is a six-month presumptively reasonable period of
detention in which Respondent may affect removal. Zadvydas v. Davis, 533 U.S. 678, 689 (2001)
(observing that 8 U.S.C. § 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.”) Respondent
concludes that because Petitioner is no longer detained under § 1226(c), and his present detention
is reasonable under Zadvydas, his petition should be dismissed as moot.

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8 U.S.C. § 1231(a)(1)(B)(i) provides:
(a) Detention, release, and removal of aliens ordered removed
(1) Removal period
(A) In general
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”).
(B) Beginning of period
The removal period begins on the latest of the following:
(i) The date the order of removal becomes
administratively final.
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B.

Analysis

The order of removal against Petitioner became final when the BIA dismissed his appeal.
See 8 C.F.R. § 1241.1(a) (stating that an order of removal from an Immigration Judge becomes
final “[u]pon dismissal of an appeal by the Board of Immigration Appeals”). Petitioner’s claim
for habeas relief based on an unreasonably prolonged pre-final removal detention can no longer
be redressed because he is no longer detained under § 1226(c). Rodney v. Mukasy, 340 F. App’x
761, 764 (3d Cir. 2009); Ufele v. Holder, 473 F. App’x 144, 146 (3d Cir. 2012) (per curiam).
Therefore, the Court does not analyze Petitioner's claim that his pre-removal order detention is
constitutionally unreasonable under Diop. Furthermore, the capable of repetition yet evading
review exception to mootness does not apply when the petitioner’s detention can no longer revert
back to pre-final removal order detention. See Ufele, 473 F. App’x at 146 n.2 (distinguishing Diop,
whose claim was capable of repetition because the Government could detain him under § 1226(c),
if the vacatur of his conviction was overturned on appeal).
Even construing the petition to raise a claim that final removal order detention is
unreasonably prolonged under Zadvydas, Petitioner became subject to final removal order
detention on March 22, 2017. Generally, “when an alien is ordered removed, the Attorney General
shall remove the alien from the United States within a period of 90 days.”

8 U.S.C. §

1231(a)(1)(A). During this removal period, “the Attorney General shall detain the alien.” 8 U.S.C.
§ 1231(a)(2). Section 1231(a)(6) permits continued detention of inadmissible or criminal aliens if
removal is not effected within 90 days.
In Zadvydas, the Supreme Court held that § 1231(a)(6) does not authorize the Attorney

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General to detain aliens indefinitely pending removal, but “limits an alien's post-removal-period
detention to a period reasonably necessary to bring about that alien's removal from the United
States.” 533 U.S. at 689. The Court established six months as a presumptively reasonable period
of post-removal-order detention. Id. at 701. To state a claim for habeas relief under § 2241, an
alien must provide good reason to believe that there is no significant likelihood of removal in the
reasonably foreseeable future. Id. Once the petitioner has met this burden, the Government must
respond with evidence sufficient to rebut that showing. Id.
In this case, Petitioner's order of removal became final on March 22, 2017, when the BIA
dismissed his appeal. This started his 90-day removal period, which is followed by a six-month
presumptively reasonable detention period. See Hendricks v. Reno, 221 F. App’x 131, 133 (3d Cir
2007) (holding that the final removal order period did not begin until the Third Circuit lifted the
stay of removal by issuing a final order on the petition for review). Accordingly, any challenge to
Petitioner’s post-removal-order immigration detention is premature. If the United States fails to
execute the order of removal within a reasonable time, Petitioner may reassert a habeas claim under
Zadvydas.
III.

CONCLUSION

For the foregoing reasons, the petition is denied without prejudice.

An appropriate Order follows.

Date May 15, 2017
At Newark, New Jersey
s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge

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