APPIAH v. RODRIGUEZ

Filing 9

OPINION. Signed by Judge Susan D. Wigenton on 7/5/2017. (JB, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RICHARD APPIAH,

Civil Action No. 17-425 (SDW)

Petitioner,
v.

OPINION

ORLANDO RODRIGUEZ,
Respondent.

WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Richard
Appiah, 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), to which Petitioner replied. (ECF No.
7). For the following reasons, this Court will dismiss the petition without prejudice.

I. BACKGROUND
Petitioner, Richard Appiah is a citizen of Ghana who applied for admission into the United
States at the Mexican border in San Ysidro, California, in January 2016. (Document 2 attached to
ECF No. 6). Because Petitioner was determined not to have a right to enter the United States as
he was not in possession of a valid visa or travel document, Petitioner was not admitted into the
United States, but was instead taken into immigration custody and placed into removal
proceedings. (Id.). On October 27, 2016, Petitioner was ordered removed to Ghana by an
immigration judge. (Document 4 attached to ECF No. 6). Petitioner appealed, and the Board of
Immigration Appeals (BIA) dismissed his appeal on March 3, 2017. (Document 5 attached to ECF
No. 6). Petitioner does not appear to have filed a petition for review with the Court of Appeals.
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II. DISCUSSION
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).

B. Analysis
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 Petitioner appears to have been originally held pursuant to 8 U.S.C. § 1225,
which governs the pre-final order of removal detention of aliens who are deemed applicants for
admission and have not effected an entry into the United Sates; once an alien is subject to a final
order of removal his detention is instead governed by 8 U.S.C. § 1231(a). Because Petitioner’s
appeal was dismissed by the BIA and he is therefore subject to an administratively final order of
removal as a result, he is currently detained pursuant to 8 U.S.C. § 1231(a). See 8 U.S.C. §
1231(a)(1)(B).

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Because Petitioner is subject to an administratively 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 a ninety day 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 observations, 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 his final order of removal, his challenge must be dismissed
as premature. Id.
In this matter, Petitioner received a final order of removal when the BIA dismissed his
appeal on March 3, 2017. As fewer than six months have passed since the entry of Petitioner’s
final order of removal, Petitioner remains well 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.

III. CONCLUSION
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: July 5, 2017

s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
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