YAHAYA v. GREEN
OPINION. Signed by Judge Kevin McNulty on 05/30/2017. (ek)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 17-1006 (KM)
KEVIN MCNULTY, U.S.D.J.
The petitioner, Ahmed Yahaya, 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. For the following reasons, the habeas
petition will be denied without prejudice.
Mr. Yahaya is a native and citizen of Ghana. He sought admission into the United States
on January 20, 2016 at the San Ysidro Port of Entry in California without valid documents for
entry. I-fe has been in immigration detention since that time.
On November 1,2016, Mr. Yahaya was ordered removed to Ghana by an Immigration
Judge (“IJ”). Mr. Yahaya then filed an appeal of that removal order to the Board of Immigration
Appeals (“BIA”). On March 22, 2017, the BIA dismissed Mr. Yahaya’s appeal of the IJ removal
In February 2017, while those immigration proceedings were pending, Mr. Yahaya filed
this federal habeas petition. The habeas petition requests his immediate release from immigration
detention or alternatively that a bond hearing take place before an IJ. ‘[‘he respondent filed a
response in opposition to the habeas petition. Mr. Yahaya did not file a reply within the time
Respondent states that, because the BIA has now dismissed his appeal, Mr. Yahaya is no
longer in pre-rernoval immigration detention but is in post-removal immigration detention.
Under the standards governing post-removal detention, argues the Respondent, continued
detention is justified and the habeas petition should be denied.
A. Pre-removal Immigration Detention
Mr. Yahaya 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. Although pre
removal standards are now moot, I review them as background.
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
(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;
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:
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
(C) is deportable under section 1 227(a)(2)(A)(i) of this title on the
basis of an offense for which the alien has been sentence to a term
of imprisomrient of at least 1 year, or
(D) is inadmissible under section 11 82(a)(3)(B) of this title or
deportable under section 1 227(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.
In Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011), the United States Court of
Appeals for the Third Circuit established a framework for analyzing the permissibility of pre
[Title 8, United States Code, Section] 1226(c) contains an implicit
limitation on reasonableness: the statute authorizes only mandatory
detention that is reasonable in length. After that, § 1226(c) yields
to the constitutional requirement that there be a further,
individualized, inquiry into whether continued detention is
necessary to carry out the statute’s purpose.... Should the length of
[an alien’s] detention become unreasonable, the Government must
justify its continued authority to detain him at a hearing at which it
bears the burden of proof.
656 F.3d at 235. Diop did not state a specific length of pre-removal-order detention beyond
which a petitioner would be entitled to a bond hearing. See id. at 234; see also Carter v. Aviles,
No. 13—3607, 2014 WL 348257, at *3 (D.N.J. Jan. 30, 2014) (“[T]he Third Circuit has not set a
‘universal point’ when mandatory detention under
1226(c) is unreasonable.”) (citing Leslie v.
Attorney Gen., 678 F.3d 265, 270—71 (3d Cir.2012)); Barcelona v. 7’/apolitano, No. 12—7494,
2013 WL 6188478, at *1 (D.N.J. Nov. 26, 2013) (“The Court of Appeals in Diop declined to
adopt a rule that a hearing was required after a certain fixed amount of time in pre-removal
detention.”) (citation omitted). Instead, the Third Circuit noted that “[r]easonableness, by its very
nature, is a fact-dependent inquiry requiring an assessment of all of the circumstances of a
particular case.” Diop, 656 F.3d at 234. A reasonableness determination “must take into account
a given individual detainee’s need for more or less time, as well as the exigencies of a particular
case.” Id. However, “the constitutional case for continued detention without inquiry into its
necessity becomes more and more suspect as detention continues past [certain] thresholds,”
Chavez—Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 474 (3d Cir. 2015) (quoting Diop,
656 F.3d at 232, 234). Indeed, in Chavez—Alvarez, the Third Circuit noted with respect to the
circumstances of that particular case that sometime after six months, and certainly within a year,
the burden to the petitioner’s liberties would outweigh any justification to detain the petitioner
without a bond hearing. See id. at 478. A petitioner’s bad faith, too, has at least the potential to
influence the determination of whether a bond hearing should be ordered. See Chavez-Alvarez,
783 F.3d at 476 (“Because we conclude that Chavez-Alvarez did not act in bad faith, we do not
need to decide here whether an alien’s delay tactics should preclude a bond hearing.”).
Respondent correctly argues that Mr. Yahaya is not entitled to relief under Diop/Chavez
Alvarez. Mr. Yahaya is no longer in pre-removal immigration detention because the BIA has
dismissed his appeal of the IJ’s removal order. See 8 C.F.R.
1241.1(a) (order of removal by IJ
becomes final upon dismissal of appeal by the BIA). Therefore, whether Mr. Yahaya would be
entitled to pre-order removal habeas relief need not be analyzed.’ I will, however, analyze
‘Respondent argues that Chavez-Alvarez and Diop are inapplicable because Mr. Yahaya was not
detained pursuant to § 1226(c). That issue is moot.
whether Mr. Yahaya is entitled to habeas relief under post-removal standards, without requiring
amendment of the habeas petition.
B. Post-removal Immigration Detention
Mr. Yahaya is now in post-removal immigration detention. Post-removal immigration
detention can become excessive at some point, and I consider whether that point has been
Title 8 of the United States Code Section 1231 (a)( I )(A) states 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”).” Id.
1231 (a)( 1 )(A). The removal period begins on the latest of the
(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
123 1(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
(a) Upon dismissal of an appeal by the Board of Immigration
(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.
1241.1. Section 1231(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 1227(a)(1)(C), l227(a)(2), or 1227(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
removal, may be detained beyond the removal period and, if
released, shall be subject to the terms of supervision in paragraph
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
v. 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 1(a)(6). See Zadvydas, 533 U.S. at 701.
Mr. Yahaya’s post-removal immigration detention began on March 22, 2017. Thus he is
still within the ninety-day period in which, under Section 123 1(a)(l)(A), post-removal detention
is mandatory. Furthermore, Mr. Yahaya is still clearly within the presumptively reasonable sixmonth period of post-removal immigration detention set forth in Zadvydas. Therefore, to the
extent that Mr. Yahaya could challenge his post-removal-order immigration detention, such a
challenge would be premature. Accord Grosset! 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 sixmonth 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 within a reasonable time, Mr. Yahaya may reassert his challenge to continued detention.
For the foregoing reasons, the habeas petition will be denied without prejudice. An
appropriate order will be entered.
DATED: May 30,2017
United States District Judge
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