K.A. v. GREEN

Filing 17

OPINION. Signed by Chief Judge Jose L. Linares on 11/16/17. (cm, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No. 17-3542 (JLL)

K.A.,
Petitioner,

OPINION
V.

CHARLES GREEN,

Respondent.

LINARES, Chief District Judge:

Presently before the Court is the petition for a writ of habeas corpus of Petitioner, K.A.,
filed pursuant to 28 U.S.C.

§ 2241 (ECF Nos. 1-2). Following an order to answer, the Government

filed a response to the petition (ECF No. 5), to which Petitioner replied by filing an emergent
motion for a preliminary injunction. (ECF No. 8). The Government thereafter filed a response to
that motion. (ECF No. 11). Petitioner has also filed motions to seal the record and an emergent
motion for a writ of mandamus (ECF Nos. 13, 15), to which the Government has responded. (ECF
Nos. 14, 16). For the following reasons, this Court will deny the petition without prejudice, will
deny the emergent motions (ECF Nos. 8, 15), and will grant Petitioner’s motion to seal the record
(ECF No. 13) only to the extent he requests that he be referred to only by his initials.

I. BACKGROUND

Petitioner, K.A., is a native and citizen of Nigeria who entered the United States sometime
prior to April 2000. (Document 1 attached to ECF No. 5 at 1). In April 2000, Petitioner was

convicted ofpossession with intent to distribute a controlled substance within 1000 feet of a school
and armed robbery in the Superior Court of New Jersey for Essex County. (Id.). Based on that
criminal conviction, on August 25, 200$, the Government placed Petitioner into removal
proceedings. (Id.).
During the pendency of those removal proceedings, Petitioner was temporarily released on
bond in 2010. (Id. at 2). Petitioner’s bond was revoked, however, when he was arrested and placed
into criminal custody in April 2011 by the United States Marshals. (Id.). Petitioner remained in
criminal custody until January 25, 2017, when he was released into the custody of immigration
officials and placed once again into immigration custody following the dismissal of his federal
criminal charges.’

(Id.). While he had been in criminal custody, however, his immigration

proceedings had continued, resulting in his being ordered removed by an Immigration Judge in
July 2010, the Board of Immigration Appeals (“BIA”) dismissing his appeal of that order in May
2012, and the Third Circuit Court of Appeals denying Petitioner’s petition for review of his
removal order in April 2013. (Id.). Thus, as of May 23, 2012, Petitioner was subject to an
administratively final order of removal notwithstanding his then being held on federal criminal
charges. (Id.). Petitioner has since filed a motion to reopen his removal proceedings, which
remains pending before the BIA at this time. (See Document 14 attached to ECF No. 11 at 3).
Petitioner also filed with the BIA a motion for a stay of removal pending a decision on his motion
to reopen, but the BIA denied that motion on August 16, 2017. (Id.).
Upon his being returned to immigration custody, the Government made efforts to secure a
travel document for Petitioner from the Nigerian Consulate, ultimately resulting in a travel

The Government appealed that dismissal, but in filing its appeal specifically consented to Petitioner’s removal while
that appeal is pending, and expressed an intent to dismiss its appeal should Petitioner be removed from the country.
(See Documents 2-3 attached to ECF No. 5).
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document being issued and Petitioner being scheduled to be removed from the United States via a
chartered flight in August 2017. (Id. at 3-4). On August 25, 2017, however, Petitioner filed
petitions for review of the BIA’s denial of his stay motion with both the Third and Ninth Circuit
Courts of Appeal.2 (Id.). Although the Third Circuit dismissed the petition for review and denied
the motion for a stay outright in October 6, 2017, the Ninth Circuit, pursuant to its rules, issued a
temporary stay of removal pending a decision on Petitioner’s stay motion in August 2017. (Id.);
see also Documents 1-2 attached to ECF No. 14). On October 11, 2017, however the Ninth Circuit

issued a formal order dismissing Petitioner’s petition for review for lack of jurisdiction and
vacating the temporary stay. (Document 1 attached to ECF No. 14). Petitioner is thus not subject
to a stay of removal at this time. (Id.). Petitioner is at this time currently detained once again at
the Essex County Correctional Facility and is awaiting the issuance of another travel document.
(Document 4 attached to ECF No. 11 at 4).

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.

§

224 1(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.

§ 224 l(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

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Petitioner had been moved to Arizona in preparation for his removal from the United States, and it is on that basis
that he appears to have filed with both Circuit Courts. (Id. at 3-4).

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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 Zathydas v. Davis, 533 U.S. 678, 699 (2001).

B. Analysis
1. Petitioner’s motion to redact the record shall be granted

Initially, the Court notes that Petitioner has requested that this Court redact the record of
this matter such that he is referred to only by his initials because his motions to reopen before the
BIA, which are referenced in this matter, contain sensitive information which could expose him to
danger upon his removal from the United States. Petitioner filed a similar motion with the Third
Circuit Court of Appeals, which denied a motion to seal his appellate record in its entirety, but
“granted [the motion] to the extent that [the] Court will, and all parties are directed to, refer to
Petitioner by his initials.” (See Document 2 attached to ECF No. 14 at 2). Because Petitioner in
his motion to seal asks only that this matter be redacted to only refer to him by his initials, because
the Third Circuit has previously granted that same relief under similar circumstances, and because
the Government has not opposed that request, this Court will grant Petitioner’s request (ECF No.
8) to the extent that Petitioner requests that he be referred to solely by his initials. The Clerk of
the Court shall therefore amend the caption of this matter to refer to Petitioner solely by his initials,
and the parties shall be directed to refer to Petitioner only by his initials should any further filings
be made in this matter.

2. Petitioner’s emergent motion for a preliminary injunction must be denied as moot

On September 13, 2017, Petitioner filed with this Court an emergent motion for a
preliminary injunction and order to show cause in which he argued that, because of the entry of a
temporary stay by the Ninth Circuit, he was now detained pursuant to 8 U.S.C.
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§ 1226(c), and that

his bond should therefore be reinstated as his detention had become overlong. The fatal flaw in
that argument, however, is that it depends entirely on Petitioner being subject to a judicially
ordered stay of removal sufficient to render his removal order non-final. While

§ 1226(c) governs

the detention of aliens who have committed certain crimes pending a decision in their removal
proceedings, once an alien is subject to a final order of removal, he is instead detained pursuant to
8 U.S.C.

§ 1231(a). See Leslie v. Att’y Gen., 679 F.3d 265, 268-71 (3d cir. 2012). A petitioner’s

detention will only revert to pre-final order status, and thus be governed by

§ 1226(c), when there

is a judicially ordered stay of removal in place or his final order of removal has otherwise been
undone. Id.

Because the Ninth circuit vacated its temporary stay of Petitioner’s removal,

Petitioner is not subject to a stay of removal, but is instead currently subject to a binding final order
of removal. He is therefore detained pursuant to 8 U.S .C.

§ 1231(a), not § 1226(c), and Petitioner’s

injunction motion is thus based on a flawed premise. Petitioner’s contention that he is entitled to
bond under

§ 1226(c) is therefore moot insomuch as Petitioner is no longer subject to § 1226(c)

detention, and his injunction request based on

§ 1226(c) (ECF No. 8) must in turn be denied as

moot.

3.

Petitioner’s emergency motion for a writ of mandamus must be denied for lack of

jurisdiction

Petitioner has also filed with this Court a request for an order granting mandamus relief
directing the BIA to consider his arguments for relief from removal as part of his motion to reopen
his removal order prior to his being removed from the United States. (ECF No. 15). Although
Petitioner asserts in his motion that he is requesting an order requiring the BIA to decide his motion
to reopen his removal order which has been pending since August, the chief relief he seeks is a

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stay of his removal pending a decision on that motion. Both the BIA and the Third Circuit,
however, have already denied Petitioner’s requests for a stay, with the Third Circuit specifically
stating that stay is not warranted as Petitioner was not likely to succeed on the merits of his motion
to reopen because his robbery conviction serves as an aggravated felony sufficient to bar him from
the relief he seeks. (See KA. v. Att ‘y Gen., Third Circuit Docket No. 17-2869 at Document No.
003112712852). Petitioner’s quest for a stay of removal in this Court is thus foreclosed

both the

BIA and the Third Circuit have already found that he is not entitled to such a stay pending his
motion to reopen before the BIA.
Even were this not the case, however, this Court is without jurisdiction to provide Petitioner
with the relief he now seeks. In adopting the REAL ID Act, Congress greatly restricted the
jurisdiction of district courts to grant relief to Petitioner’s challenging their orders of removal or
actions related to such orders. See $ U.S.C.

§ 1252(a)(5). Pursuant to the Act,

[n]otwithstanding any other provision of law (statutory or
nonstatutory), including [28 U.S.C. § 2241], or any other habeas
corpus provision, and [2$ U.S.C. § 1361 and 1651, the statutes
which provide the basis for mandamus jurisdiction,] a petition for
review filed with an appropriate court of appeals in accordance with
this section shall be the sole and exclusive means for judicial review
of an order of removal entered or issued under any provision of this
chapter, except as provided in subsection (e) of this section. For
purposes of this chapter, in every provision that limits or eliminates
judicial review or jurisdiction to review, the terms ‘judicial review”
and ‘jurisdiction to review” include habeas corpus pursuant to [2$
U.S.C. § 2241], or any other habeas corpus provision, t2$ U.S.C. §
1361 and 1651], and review pursuant to any other provision of law
(statutory or nonstatutory).
8 U.S.C.

§ 1252(a)(5). The statute likewise provides that
[j]udicial review of all questions of law and fact, including
interpretation and application of constitutional and statutory
provisions, arising from any action taken or proceeding brought to
remove an alien from the United States under this subchapter shall
be available only in judicial review of a final order under this
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section. Except as otherwise provided in this section, no court shall
have jurisdiction, by habeas corpus under [8 U.S.C. § 2241] or any
other habeas corpus provision, by [28 U.S.C. § 1361 or 1651], or
by any other provision of law (statutory or nonstatutory), to review
such an order or such questions of law or fact.
$ U.S.C.

§ 1252(b)(9). The ultimate result of these statutory provisions is that this Court has been

stripped of any and all jurisdiction to consider a request for a stay or removal or to review the
actions of the BIA via a writ of mandamus where the issues in question are inextricably linked to
a removal order. See, e.g., Chuva v. Att’y Gen., 432 F. App’x 176, 177 (3d Cir. 2011); see also
Verde-Rodriguez v. Attv’ Gen., 734 F.3d 198, 206-07 (3d Cir. 2013) (the REAL ID Act provided
a petitioner with an alternative to habeas corpus for challenges to and related to orders of removal
—

a petition for review with the Circuit Court

—

and a petitioner must use that mechanism, and not

a habeas petition, to present challenges to his removal order or challenges to defects in such a
removal order); Martinez v. Napolitano, 704 f.3d 620, 623 (9th Cir. 2012) (“[wJhen a claim by an
alien, however it is framed, challenges the procedure and substance of an agency determination
that is ‘inextricably linked’ to the order of removal, [such a challenge in the district court] is
prohibited by section 1252(a)(5)”); Gonzalez-Lora v. Warden Fort Dix fCI, 629 F. App’x 400,
401-02 (3d Cir. 2015). Because Petitioner’s mandamus and stay requests are indirect challenges
aimed at his removal order and the BIA’s refusal to grant him a stay of that order, this Court lacks
jurisdiction to provide Petitioner with the relief he seeks, and his requests for a stay or a writ of
mandamus must therefore be denied.

4. Petitioner is in any event not entitled to habeas relief

In his petition, Petitioner chiefly argues in his motion that his detention has become
overlong and that he is therefore entitled to release from immigration detention.

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Because

Petitioner, for the reasons explained above, is detained pursuant to 8 U.S.C.

§ 123 1(a) insomuch

as he is subject to a final order of removal and is not currently subject to a judicially ordered stay
of removal, the propriety of his continued detention pending removal from the United States is
governed by the Supreme Court’s ruling in Zathydas. In Zadvydas, the Supreme Court observed
that

§ 123 1(a) requires the Government to detain all aliens subject to a final order of removal

throughout a ninety day statutory removal period. 533 U.S. at 683. The Court further noted that
the statute permits the Government to continue to detain an alien afler the expiration of the ninetyday period so long as the alien’s detention remains “reasonably necessary to effectuate the alien’s
removal. Id. at 701. Based on this statutory background, the Zadvydas Court ultimately held that
an alien may be detained pursuant to

§ 123 1(a) for a period of up to six months following the onset

of his removal period during which his detention will be presumed to be reasonable. Id. at 701.
Pursuant to the statute, the statutory removal period, and in turn the six month
presumptively reasonable period, begins on the latest of three possible dates: the date on which the
alien’s removal order becomes administratively final by the denial of his appeal by the BIA, the
date the Court of Appeals issues a final order in those cases where the alien appeals his removal
order and seeks and receives a stay of removal ordered by the Court of Appeals, or “[hf the alien
is detained or confined (except under an immigration process), the date the alien is released from
detention or confinement.” 8 U.S.C.

§ 123 1(a)(1)(B)(i)-(iii). The ninety day removal period, and

in turn the six month reasonable detention period, resets upon the occurrence of any of these three
events. See, e.g., Trujillo-Acosta v. US. Dep ‘t ofHomeland Sec., No. 06-43 16, 2007 WE 1299442,
at *2 (D.N.J. May 2, 2007); Gregoiy

V.

B.I.C.E./D.H.S., No. 06-4008, 2007 WL 708856 (Mar. 6,

2007).

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In this matter, Petitioner argues that his removal period began upon the issuance of a final
order of removal in 2012, and has thus long since expired. Petitioner in turn argues that his release
from criminal custody in 2017 did not reset the running of his removal period because he had not
been confined pursuant to a judgment of the district court, but rather had been held in pre-trial
detention pursuant to his arraignment.

Petitioner, however, makes a distinction the relevant

statutory text does not. Section 1231(a)(1)(B)(iii) does not require that Petitioner have been
convicted and released from prison to reset the running of his removal period. Instead, the statute
specifically states that if “[i]f the alien is detained or confined (except under an immigration
process),” his removal period will reset on “the date the alien is released from detention or
confinement.” Id. There is no requirement that the detention arise from a criminal judgment,
indeed, the detention need not have been criminal at all. The only relevant statutory requirement
is the detention from which the alien was released was not “under an immigration process.” Id.
In his petition, Petitioner clearly states that he was released from criminal pre-trial detention on
January 25, 2017, and placed into immigration detention. Because Petitioner was released into
immigration custody from non-immigration detention on that date,

§ 1231 (a)( 1 )(B)(iii) mandates

that his removal period began to run on that date. Petitioner’s six-month presumptively reasonable
period thus runs from that date, and expired at the end of June 2017.
Zadvydas, however, does not require that a Petitioner be released from immigration
custody merely because the six-month presumptively reasonable period of detention has expired.
Instead, where the six-month presumptively reasonable period has passed, an alien will not be
entitled to habeas 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 a habeas petitioner

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can make this initial showing, the Government may continue to detain him where the Government
rebuts Petitioner’s evidence and shows that the alien’s removal remains likely in the reasonably
foreseeable future. Id.
In this matter, Petitioner has been held pursuant to

§ 1231(a) for over nine months. During

that time, the Government has sought, and obtained, at least one travel document for Petitioner
from the Nigerian Consulate notwithstanding the Government’s appeal of the dismissal of
Petitioner’s criminal charges3 and Petitioner’s attempts to reopen his order of removal. Indeed,
were it not for Petitioner’s eleventh hour motion for a stay with the Ninth Circuit, which provided
him with a temporary and now vacated stay of removal, Petitioner would have been removed in
August. Petitioner has presented no evidence sufficient to suggest to this Court that his removal
is not likely in the reasonably foreseeable future.

Indeed, in his multiple motions seeking

emergency relief in this matter, Petitioner has essentially argued himself that his removal, absent
court action, is very likely to occur in the foreseeable future. As Petitioner has failed to provide
the Court with good reason to believe that his removal is unlikely, and because the Government
has in any event clearly shown that Petitioner’s removal is quite likely in the reasonably
foreseeable future now that his temporary stay of removal has been vacated, Petitioner is not
entitled to habeas relief.

III. CONCLUSION

To the extent that Petitioner asserts that this outstanding appeal prevents him from being held pending his removal
pursuant to s U.S.C. § 1231(a), Petitioner has failed in any way to show that he is being held by immigration officials
merely to keep him detained while the Government’s criminal appeal proceeds. Instead, the Government has
provided direct evidence showing that the Government has not only consented to Petitioner’s removal
notwithstanding their appeal of his criminal charge dismissal, but also that they have already consented to the
dismissal of that appeal shouLd he be removed. As the Government has therefore consented to his removal regardless
of the appeal, the criminal appeal has no bearing on the legitimacy of Petitioner’s being held pending removal. See
8 C.F.R. § 215.3(g) (alien can be removed notwithstanding pending criminal charges where the prosecuting
authority so consents).

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For the reasons expressed above, this Court will grant Petitioner’s motion to seal to the
extent he requests the Court refer to him only by his initials, will deny Petitioner’s motions for an
injunction and for mandamus relief, and will deny Petitioner’s habeas petition without prejudice.
An appropriate order follows.

United States District Court

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