K.A. v. GREEN

Filing 30

OPINION. Signed by Chief Judge Jose L. Linares on 2/27/18. (cm, )

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 Petitioner K.A.’s motion for reconsideration of this Court’s
final order denying his petition for a writ of habeas

coiptts

without prejudice brought pursuant to

Federal Rule of Civil Procedure 59(e).’ (ECF No. 20). For the following reasons, the Court will
deny the motion.

I. BACKGROUND

As this Court previously explained,
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 of
possession 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, 2008, the Government placed Petitioner
into removal proceedings. (Id.).

In his motion. Petitioner states that he wishes to seek reconsideration under either Local Rule 7.1(i) or Rule 59(e).
As Petitioner’s motion was filed on or about December 5, 2017, nineteen days after the final order and opinion in
this matter, Petitioner’s motion would be untimely to the extent that it is raised under Local Rule 7.1(i). See Smart
u.Araniark, Inc.. 61$ F. App’x 728, 730, 730 n. 3 (3d Cir. 2015) (while Rule 59(e) motions are timely iffiled within
twenty-eight days of the final order, a Local Rule 7.1(i) motion must be filed within fourteen days of the order being
challenged): see also Local Civil Rule 7.1(i). Thus, the Court will consider the motion solely under Rule 59(e). and
wilt deny the motion as untimely filed to the extent it is filed pursuant to Local Rule 7.1(i).

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Petitioner’s bond was revoked, however, when he was arrested and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 201 1 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
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.[J (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).
(ECF No. 17 at 1—3).
2

Based on this factual background, this Court entered an order on November 16, 2017,2
which granted Petitioner’s motion to seal only to the extent that Petitioner would be referred to
only by his initials in this matter, and denied Petitioner’s habeas petition without prejudice because
Petitioner was properly subject to detention pursuant to $ U.S.C.

§ 123 1(a) and had not shown that

he was entitled to relief under the Supreme Court’s holding in Zadvydas v. Davis, 533 U.S. 678
(2001). (ECF No. 18). This Court explained that decision as follows:
[Petitioner argues] that, because of the entry of a temporary stay by
the Ninth Circuit, he [is] now detained pursuant to 8 U.S.C. §
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. § 123 1(a). See
Leslie v. Atty 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)
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[.]
.

.

.

Because Petitioner, for the reasons explained above, is
detained pursuant to 8 U.S.C. § 123 1(a) insomuch ashe is subject to
2

The Court’s November 16 Order also denied Petitioner’s motion for a stay or writ of mandamus and Petitioner’s
motion for a preliminary injunction. (See ECF No. 1$). Petitioner does not appear to be challenging the Court’s
denial of his motion for a stay or writ of mandamus for lack ofjurisdiction. (See ECF No. 20). Although Petitioner
does challenge the denial of his motion for a preliminary injunction in addition to the denial of his habeas petition,
his claim in his underlying petition was the same as that presented by his injunction request that he should be
entitled to release from immigration detention on bond. Because the claims, and the Court’s decision as to them,
are inextricably bound, this Court discusses Petitioner’s motion for reconsideration only in terms of the denial of
his petition, but the Court’s reasoning applies equally to both the denial of his motion for a preliminary injunction
and the denial of his petition.
—

3

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 Zath’vdas. In Zathydas, the Supreme Court
observed that § 1231(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 pennits the Government to continue to detain an alien after
the expiration of the ninety-day 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
Zathydas 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
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. § l231(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., Trt/itto-Acosta v. US. Dep ‘t of Homeland Sec., No. 06-43 16,
2007 WL 1299442, at *2 (D.N.J. May 2, 2007); Gregory v.
B.I.C.E./D.H.S., No. 06-4008, 2007 WL 708856 (Mar. 6, 2007).
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
l231(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
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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, §
123 l(a)(l)(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.
Zadvpdas, 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 Zath’vdas, 533
U.S. at 701). Where a habeas petitioner 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 fttture. Id.
In this matter, Petitioner has been held pursuant to § 123 1(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 charges[] 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.
(ECF No. 17 at 4—5, 7—10).
5

On December 5, 2017, Petitioner filed with this Court a motion seeking reconsideration of
the Court’s denial of his motion to seal the record and the denial of his habeas petition. (ECf No.
20). In challenging the denial of his habeas petition, Petitioner argues that he should now once
again be considered to be detained under $ U.S.C.

§ 1226(c) because, on December 5, 2017, he

received a stay of removal from the Third Circuit Court of appeals. (Id. at 2—3). In making that
argument, Petitioner admits, however, that he was not subject to a stay of removal at the time this
Court decided his petition, as the temporary stay he previously received had been vacated by the
Ninth Circuit. (Id. at 2). Petitioner also seeks reconsideration of this Court’s limited grant of his
motion to seal the record. (Id. at 3—4). The Government did not file a response to this motion,
despite ample opportunity to do so. (ECf Docket Sheet).

II. DISCUSSION
A. Legal Standard

The scope of a motion to amend a judgment pursuant to Rule 59(e) is extremely limited.
See Blvstone v. Horn, 664 F.3d 397. 415 (3d Cir. 2011). A Rule 59(e) motion may be employed
“only to correct manifest errors of law or fact or to present newly discovered evidence.” Id.
“Accordingly, a judgment may be altered or amended [only] if the party seeking reconsideration
shows at least one of the following grounds: (I) an intervening change in the controlling law; (2)
the availability of new evidence that was not available when the court [decided the motion], or (3)
the need to cotTect a clear error of law or fact or to prevent manifest injustice.” Id. (quoting
Howard Hess Dental Labs., Inc. v. Dentsplv hit 7 Inc., 602 f.2d 237, 251 (3d Cir. 2010)). In this
context, manifest injustice “generally.

.

.

means that the Court overlooked some dispositive factual

or legal matter that was presented to it,” or that a “direct, obvious, and observable” error occurred.

6

See Brown v. Zickefoose, Civil Action No. 11-3330, 2011 WL 5007829, at *2 n. 3 (D.N.J. 2011).
While evidence will qualify as “newly discovered” if the party presenting it “could not earlier
submit [it] to the court because [it] was

not

previously available,” Blystone, 664 F.3d at 415—1 6, a

Court reviewing a reconsideration motion brought pursuant to Rule 59(e) can “not consider any
events that took place after” the completion of briefing of the matter or the Court’s entry of
judgment. See Cottrellv. Good Wheels, 458 F. App’x 98, 101 (3d Cir. 2012).

B. Analysis

1. Petitioner’s request for release on bond
Petitioner first contends that this Court should reconsider its prior decision denying him
habeas relief because, several weeks after this Court denied Petitioner’s habeas petition, the Third
Circuit Court of Appeals granted Petitioner a stay of removal in his appeal from the denial of his
motion to reopen his removal order. (See K.A. v. Au y Gen., Third Circuit Docket No. 17-3640 at
Orders dated December 5, 2017 and December 18, 2017). Petitioner thus argues that, because he
is now subject to a stay of removal, his detention status will revert back to

§ 1226(c) detention,

and he should now be entitled to a bond hearing. (ECF No. 20). In making that argument,
Petitioner does not assert that the Court overlooked any relevant fact or legal authority in rendering
its decision in November 2017, nor that there has been an intervening change in the law controlling
his case. Petitioner likewise does not argue that the Court’s prior Order reached an incorrect
conclusion based on the facts then in existence.
Instead, Petitioner asks the Court to consider events which occurred after the Court
rendered its decision. The Court, however, may not consider in a motion for reconsideration events
which occurred after a final decision was reached.

Cottretl, 45$ F. App’x at 101. As the Court

cannot consider these events which post-date the Court’s decision on Petitioner’s habeas claims,
7

as Petitioner has not shown that the Court’s prior order resulted in a manifest injustice, and because
Petitioner has failed to show that the Court committed any clear error of fact or law in its decision
based on the situation that existed at the time the Court reached its decision, Petitioner’s
reconsideration motion must fail. ía.; see also Blvstone, 664 F.3d at 415-16. The Court will
therefore deny Petitioner’s Rule 59(e) motion as to the Court’s denial of his habeas petition at this
time. Petitioner is free, however, to file a new habeas petition challenging the state of his detention
as it presently exists as the Court’s denial of his petition was without prejudice to the filing of a
new petition upon changed circumstances and it appears Petitioner’s circumstances have indeed
changed.

2. Petitioner’s motion to seal

In his motion, Petitioner also repeats his request that the Court order the sealing of the
documents filed in this matter, or in the alternative for the redaction of all names in the record to
initials. The only argument that Petitioner makes in support of his allegation that this Court should
reconsider its limited grant of his prior request is his belief that the Court inadvertently considered
a request for the redaction of his name in the caption and documents in this matter the frill extent
of his request. Petitioner, however, is mistaken. The Court did not ignore the frill thrust of his
request that all documents be either sealed or redacted in this matter, but instead concluded that

ordering the parties to refer to Petitioner only by his initials was the only relief warranted by
Petitioner’s request to seal the record.
The Third Circuit has held that “there is a presumption of access to judicial records.”
Jankoitski v. fxtendicare Homes, Inc., 436 F. App’x 66, 67 (3d Cir. 2011) (citing In re Cendant

Coip., 260 f.3d 183, 194 (3d Cir. 2001)). A “party seeking to seal a portion of the judicial record

8

bears the burden of demonstrating that ‘disclosure will work a clearly defined and serious injury
to the party seeking disclosure,” and a “party who seeks to seal an entire record faces an even
heavier burden.” Id. (quoting Mit/er v. md. Hosp., 16 f.3d 549, 551 (3d Cir. 1994)). “[B]road
allegations of harm, bereft of specific examples or articulated reasoning, are insufficient to warrant
the sealing of the judicial record.” Id. (quoting In re Cendent Coip., 260 F.3d at 194).
In his motion to seal the record, Petitioner offered little more than vague allegations that
he was a member of “particular social groups subject to harm and treatment in the country he has
been designated to be removed to,” without providing further explanation other than to assert that
he provided information to the Government in his immigration proceedings in confidence. Given
the vague nature of Petitioner’s request which is insufficient to warrant the sealing of the entire
record, see Jankowski, 436 F. App’x at 67-68, the fact that immigration habeas documents are
already subject to limited access restrictions through the Court’s electronic docketing system, and
the fact that the Third Circuit when faced with a similar request by Petitioner has previously denied
requests by Petitioner to seal the entire record and instead has granted his requests only to the
extent of referring to Petitioner by his initials (see Document 2 attached to ECF No. 14 at 2), this
Court concluded that following the Third Circuit’s lead and granting only that limited form of
relief was warranted by Petitioner’s request to seal the record. Nothing Petitioner has submitted
in his motion for reconsideration suggests that this conclusion was in error, nor has Petitioner
pointed to any relevant fact or legal issue the Court overlooked in reaching its conclusion.
Petitioner has likewise failed to provide any new evidence, or show that the Court’s limited grant

The Court also notes that the Third Circuit has repeated this same course denying a request to seal the entire record
but granting a seal request only to the extent of directing the parties to refer to Petitioner by his initials in
Petitioner’s appeal from the denial of his motion to reopen immigration proceedings. (See K.A. v. Att’v Gen., Third
Circuit Docket No. 17-3640 at Order dated December 18, 2017).
—

—

9

of Petitioner’s motion to seal the record would work a manifest injustice.4 Petitioner’s motion for
reconsideration shall therefore also be denied as to the request to seal the record.

III. CONCLUSION

F or the reasons expressed above, this Court will deny Petitioner’s Rule 59(e) motion. An
appropriate order follows.

Date: February

17

,

201$

Chief Judge, United States District Court

The Court also notes that, in filing his motion, Petitioner declined to follow the Cour(s order directing the parties
to refer to him on1’ by his initials, as he refers to himself by name several times in the documents he filed with his
Rule 59(e) motion. which to some extent undercuts Petitioner’s bald assertion of a manifest injustice resulting from
his name being placed in the record.

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