MCAULAY v. TAYLOR

Filing 11

OPINION. Signed by Chief Judge Jose L. Linares on 10/25/17. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No. 17-3290 (JLL)

ALASDAIR MURRAY MCAULAY,
Petitioner,

OPINION

V.

ERIC TAYLOR,
Respondent.

LINARES, Chief District Judge:
Presently before the Court is the petition for a writ of hctbeas corp its of Petitioner, Alasdair
Murray McAulay, 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. 4), to which Petitioner has replied. (ECF
Nos. 7, 9). for the reasons set forth below, this Court will deny the petition without prejudice.

I. BACKGROUND

Petitioner, Alasdair Murray McAulay, is a native of Carneroon and a citizen of the United
Kingdom who entered this Country as a visitor in 1991 with permission to remain in the United
States until February 3, 1992. (ECF No. 7-5). Petitioner, however, chose to remain in the United
States long after his authorization to do so had expired.

(Id.).

Based on this overstay, the

Government issued Petitioner a notice to appear and placed him into removal proceedings in
October 2007. (Id.). Petitioner was thereafter taken into immigration custody until he was released
on bond in April 2009.
continued thereafter. (Id.).

(ECF No. 4-1, at 2).

Petitioner’s removal proceedings apparently

On March 27, 2013, Petitioner was arrested on elder abuse charges in California. (Id. at
3). Based on that arrest, and Petitioner’s ultimate conviction on those elder abuse charges in June
2014, immigration authorities revoked Petitioner’s bond and ultimately took him back into custody
upon his release from criminal detention in June 2016. (Id.). On September 15, 2016, Petitioner
was ordered removed by an immigration judge. (Id. at 4). Petitioner waived his right to appeal
his removal order at that same hearing. (Id.). Petitioner was thereafter transfelTed to the Hudson
County Correctional Facility in Kearney, where he has remained while the Government has sought
to remove him to the United Kingdom. (Id.).
Since September 2016, the Government has submitted several documents and forms of
proof of Petitioner’s identity to the United Kingdom’s Consulate and passport office in aid of the
Government’s application for a travel document for Petitioner. (Id. at 4—6). Following an initial
application, the UK’s passport office requested a copy of Petitioner’s birth certificate on February
22, 2017, which the Government agreed to provide. (Id. at 4). The passport office thereafter
requested further documents from the Government in April and June 2017. (Id. at 5). On June 15,
2017, the Government located Petitioner’s birth certificate, and submitted the birth certificate, as
well as the other requested documents, to the UK passport office. (Id.). The passport office then
informed the Government that the request for a travel document had been submitted, and that the
Government would be informed once the UK had made a decision as to whether to issue a travel
document for Petitioner. (Id.). The Government is apparently prepared to remove Petitioner as
soon as a document is issued.
While this removal process has been ongoing, petitioner filed a motion to reopen his
removal hearings in March 2017. That motion was denied by an immigration judge on April 19,
2017. (Id.). Petitioner filed an appeal of the denial of his motion to reopen with the Board of

Immigration Appeals on May 12, 2017. (Id.). Briefing of that appeal concluded in June 2017, and
Petitioner’s appeal apparently remains pending before the BIA at this time. Neither the BIA nor
the immigration judge have ordered a stay of Petitioner’s removal order at this time. (Id.).

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. Kenma. 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Court. 410 U.S.

484, 494—95, 500 (1973); see cilso Zadvydcts v. Dctvis, 533 U.S. 678, 699 (2001).

B. Analysis
Petitioner contends that, because of the overlong nature of his immigration detention, he
should be entitled either to a bond hearing or his outright release. In order to evaluate that claim,
the Court must first detennine the statutory basis for Petitioner’s detention. While Petitioner was
initially held. and released on bond, under 8 U.S.C.
under

§ 1226(a), and was eventually held once again

§ 1226(c) following his criminal conviction, an immigration judge ordered Petitioner

removed in September 2016, and Petitioner waived his right to appeal that removal to the BIA at

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that time. Because a removal order becomes administratively final

upon

the “waiver of appeal”

by the alien following the entry of a removal order by an immigration judge, see $ C.F.R.

§

123 1.1(b); see also HIiini v. Holder. Nos. 13-3210 (KM), 13-3691 (KM), 2013 WL 4500324, at
*4 (D.N.J. Aug. 20, 2013), Petitioner was therefore subject to a final order of removal as of that
date.

Because that final removal order has not been vacated, reopened, or otherwise stayed,

Petitioner remains subject to a final order of removal and his current detention is governed by $
U.S.C.

§ 123 1(a). Htimi, 2013 WL 4500324 at *3_4•
Because Petitioner is subject to a final order of removal and is therefore detained under

§

123 1(a), the propriety of his detention is controlled by the Supreme Court’s decision in Zathydas.
In Zathydas, the Supreme Court observed that

§ 123 1(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. La’. 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 § 123 1(a) for a period ofup 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.
That an alien’s detention exceeds this presumptively reasonable six month period,
however, does not automatically entitle an alien to relief from immigration detention. Under
Zath’vdas, once the six month period expires, an alien seeking relief must first present the Court

with “good reason to believe that there is no significant likelihood of removal in the reasonably

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foreseeable future.” Alexander v. Atty Gen., 495 F. App’x 274, 276 (3d Cir. 2012) (quoting
Zathydas, 533 U.S. at 701). Where an alien meets this initial burden, the Government can establish
its continued authority to detain

only

if the Government can rebut his evidence and show that the

alien’s removal remains likely in the reasonably foreseeable future. Id.
In this matter, Petitioner has been detained pursuant to his final order of removal for just
over a year. In that time, the Government has been in direct contact with the consulate of the
United Kingdom and the UK’s passport office, and has provided the passport office with various
pieces of information and documents the office requested in support of the Government’s
application for a travel document. Specifically, the Government has provided the UK passport
office with copies of Petitioner’s birth certificate, previous UK passport, and the information the
office requested regarding Petitioner’s past addresses and schools. (ECF No. 4-1, at 4—6). The
record before the Court thus suggests that Petitioner’s removal awaits only the issuance of a travel
document by the United Kingdom.

Based on the Government’s having provided the United

Kingdom with the additional requested information, and the lack of any indication that a travel
document is not forthcoming other than Petitioner’s own belief to that effect, the Government has
more than rebutted any presentation Petitioner has made suggesting that his removal is not likely
in the reasonably foreseeable future. Because the issuance of a travel document, and Petitioner’s
removal in turn, are likely in the reasonably foreseeable future, Petitioner is not entitled to release
at this time, and his habeas petition must be denied without prejudice. Alexander, 495 F. App’x
at 276.

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III. CONCLUSION

For the reasons expressed above, this Court denies Petitioner’s habects petition without
prejudice. An appropriate order follows.

United States District Court

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