BOYD v. TAYLOR et al
OPINION. Signed by Judge Susan D. Wigenton on 9/28/17. (DD, ) N/M
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 17-3284 (SDW)
ERIC TAYLOR, et al.,
WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Kelan
Boyd, filed pursuant to 28 U.S.C. § 2241. (ECF No. 1). Following an order to answer, the
Government filed responses to the petition (ECF No. 4, 6), to which Petitioner has replied. (ECF
Nos. 5, 7). For the reasons set forth below, this Court will deny the petition without prejudice.
Petitioner, Kelan Boyd, is a native and citizen of Trinidad and Tobago who entered this
country in January 2011 on a non-immigrant visa granting him authorization to remain in the
United States until July 18, 2011. (Document 1 attached to ECF No. 4 at 2). Petitioner did not
depart, however, when his visa expired. (Id.). Instead, Petitioner remained in the United States
and in November 2012 was convicted of credit card fraud in Virginia. (Id.). Petitioner was
thereafter placed in removal proceedings, resulting in Petitioner applying for and being granted an
order for voluntary departure on September 16, 2015. (Id. at 2-3). Pursuant to that Order,
Petitioner was to voluntarily depart the United States by January 14, 2016, and if Petitioner failed
to depart he would automatically be subject to an alternative removal order. (Id. at 3).
Because Petitioner chose not to depart, his departure order converted into a removal order
in January 2016, and immigration officials took him into custody with the intent to have him
removed on February 3, 2016. (Id.). Later that month, Petitioner filed a motion to reopen his
removal order, which an Immigration Judge denied on March 10, 2016. (Id.). Petitioner appealed,
and the Board of Immigration Appeals (“BIA”) dismissed his appeal on June 14, 2016. (Id.). The
Government thereafter sought, and obtained for Petitioner a travel document from the Consulate
of Trinidad and Tobago on August 16, 2016. (Id.). Before the Government could remove
Petitioner, however, he sought review from the Second Circuit Court of Appeals. (Id.). The
Second Circuit thereafter dismissed Petitioner’s petition for review in November 2016. (Id.).
Petitioner filed multiple reconsideration motions, but those motions were denied by the Second
Circuit, resulting in a final mandate dismissing his appeal on January 11, 2017. 1 (Id. at 4).
While Petitioner was litigating his reconsideration motions in the Second Circuit, the
Government requested a new travel document from the Consulate. (Id.). While the Consulate was
apparently compliant and willing to issue a travel document once again, it could not do so in time
to meet the Government’s removal itinerary due to staffing issues, and Petitioner thus could not
be removed prior to February 2017. (Id.). In February 2017, however, Petitioner filed a second
motion to reopen his removal order with the BIA, which was denied on March 16, 2017. (Id.). On
April 4, 2017, Petitioner filed with the Second Circuit another petition for review, which remains
pending at this time. (Id.). Petitioner also filed with the Second Circuit a motion for a stay of
removal pending the outcome of his petition for review, which also remains pending at this time.
Although Petitioner’s immigration proceedings were conducted in New York, and his appeal
therefrom is currently pending in the Second Circuit, he is detained in New Jersey by a custodian
subject to the jurisdiction of this Court, and his habeas petition is thus properly before this Court.
(See ECF No. 1).
(Id.). Because Petitioner filed the present motion, and his motion and petition remain pending in
the Second Circuit, he is subject to the Second Circuit’s forbearance policy, and cannot be removed
until his stay motion is decided. (Id.). While the Government cannot remove Petitioner under the
forbearance agreement until Petitioner’s appeal has concluded, the Government continued to seek
a travel document so that Petitioner could swiftly be removed once his appeal concludes. (Id.).
The Trinidad and Tobago consulate, however, has informed the Government that it will not
provide a travel document for Petitioner until the Second Circuit decides his appeal. (Id.).
Based on his removal proceedings, Petitioner has remained detained since he was taken
into custody in February 2016. (Id. at 7). Petitioner has sought bond redeterminations during this
time, but in each instance was denied relief as the Immigration Judge determined that it lacked
jurisdiction to provide Petitioner bond as he is subject to a final removal order. (Id. at 4).
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 ongoing detention violates Due Process
and that he is therefore entitled to a bond hearing pursuant to either the Second Circuit’s ruling in
Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015), or the Third Circuit’s rulings in Diop v.
ICE/Homeland Sec., 656 F.3d 221, 231-35 (3d Cir. 2011), and Chavez-Alvarez v. Warden York
County Prison, 783 F.3d 469 (3d Cir. 2015). The Government instead contends that Petitioner is
currently subject to a final removal order and is thus properly subject to detention pursuant to 8
U.S.C. § 1231(a). In order to determine Petitioner’s entitlement to relief, this Court must first
determine the statutory basis for his detention.
In this matter, Petitioner received an order of voluntary departure requiring him to leave
this Country by mid-January, 2016. Because Petitioner did not leave the country within the time
set by the voluntary departure order, he became subject to the alternative removal order, see 8
C.F.R. 1240.26(d), and was therefore subject to an administratively final removal order at that
time. That both the Immigration Judge and BIA have denied his attempts at appeals of that removal
order likewise firmly establishes that Petitioner is subject to an administratively final removal
order. See 8 C.F.R. § 1241.1(a) (order of removal becomes final upon dismissal of appeal by BIA).
Once an alien is subject to an administratively final removal order, his detention is authorized by
8 U.S.C. § 1231(a) unless and until the alien seeks judicial review of his removal order and the
requisite court of appeals grants him a stay of removal. See, e.g., 8 U.S.C. § 1231(a)(1)(B)(ii);
Leslie v. Attorney General of the United States, 678 F.3d 265, 268-70 (3d Cir. 2012); Brodyak v.
Davies, No. 14-4351, 2015 WL 1197535, at *2 (D.N.J. March 16, 2015). If the alien seeks, and
is granted, a stay by the Court of Appeals, his detention reverts to pre-final order status, and the
alien returns to detention pursuant to 8 U.S.C. § 1226. Leslie, 678 F.3d at 268-70. “It is the grant
of a stay [by the Court of Appeals, however], and not simply the filing of a [request or motion] for
a stay, which alters an alien’s status.” Brodyak, 2015 WL 1197535, at *2 (citing Leslie, 678 at
The statutory basis for Petitioner’s detention thus turns on whether or not Petitioner has
been granted a stay of removal by the Court of Appeals. As noted above, although Petitioner has
filed another petition for review with the Second Circuit and has filed a motion for a stay of
removal, the Second Circuit has not yet ruled upon the motion for a stay. (See Boyd v. Sessions,
Second Circuit Docket No. 17-951 ECF Docket Sheet). Petitioner has thus not formally been
granted a stay of removal by the Court of Appeals. Petitioner is, however, subject to the
forbearance agreement between the Government and the Second Circuit under which the
Government has agreed not to remove aliens whose removal orders are subject to review by the
Second Circuit until such time as the Second Circuit has ruled upon those aliens’ requests for stay
of removal. See Brodyak, 2015 WL 1197535 at *2 n. 2. The forbearance agreement, however, is
not a court ordered stay, and as numerous courts in this District have held, it is therefore
insufficient to revert a Petitioner’s detention to pre-final order status. See, e.g., Id.; Jones v. Aviles,
No. 15-4819, 2016 WL 3965196, at *3 (D.N.J. July 21, 2016); Severin v. Aviles, No. 15-3711,
2016 WL 1450550, at *2 (D.N.J. Apr. 12, 2016); Rones v. Aviles, No. 15-3798, 2016 WL 158521,
at *5 (D.N.J. Jan. 13, 2016). Thus, because Petitioner is subject to a final order of removal and,
although subject to the forbearance agreement, has not been granted a formal stay of removal by
the Court of Appeals, he remains detained pursuant to 8 U.S.C. § 1231(a).
Because Petitioner is subject to detention under § 1231(a), the propriety of his detention is
controlled by the Supreme Court’s decision in Zadvydas. Leslie, 578 F.3d at 268-70. In Zadvydas,
the Supreme Court observed that § 1231(a) commands 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 also held that the statute does not limit post-removal order detention to this
ninety day period; instead the Court found 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 determinations and the Court’s
observations regarding the ordinary course of removal proceedings, 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 constitutionally permissible. Id. at 701.
Even where the alien’s detention exceeds the six month presumptively reasonable period,
however, an alien will not be entitled to relief unless he can “provide good reason to believe that
there is no significant likelihood of removal in the reasonably foreseeable future.’” Alexander v.
Att’y Gen., 495 F. App’x 274, 276 (3d Cir. 2012) (quoting Zadvydas, 533 U.S. at 701). Where an
alien makes such a showing, the Government may continue to detain him only where the
Government rebuts his evidence and shows that the alien’s removal remains likely in the
reasonably foreseeable future. Id.
While Petitioner in this matter has been detained for a considerable period of time
following his final order of removal, Petitioner has failed to provide the Court with good reason to
believe that his removal is not likely in the reasonably foreseeable future, and, even had Petitioner
met this initial burden, the Government has more than succeeded in rebutting Petitioner’s
assertions. Specifically, the Court notes that Petitioner’s home country has on at least one occasion
provided a travel document for Petitioner, and was working with the Government to secure a travel
itinerary for Petitioner’s return to Trinidad and Tobago in January 2017. It was only because
Petitioner filed his second petition for review and requested a stay from the Second Circuit that
this process did not conclude in Petitioner’s removal from the United States. It is clear from the
information the Government has submitted that Petitioner’s removal is very likely to proceed
quickly once the Second Circuit decides Petitioner’s second petition for review and Petitioner
ceases to be covered by the forbearance agreement. The record thus establishes that the only
reason Petitioner remains detained is that Petitioner chose to file a second petition for review rather
than accept his removal to his home country, and Petitioner’s detention thus has a foreseeable
endpoint – Petitioner’s removal once his appeal concludes.
Because the Government has
established that Petitioner’s removal is very likely in the reasonably foreseeable future, Petitioner’s
detention pending his removal remains lawful and Petitioner is not entitled to relief under
Zadvydas. Petitioner’s habeas petition is therefore denied without prejudice.
For the reasons expressed above, this Court denies Petitioner’s habeas petition without
prejudice. An appropriate order follows.
Dated: September 28, 2017
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
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