ARIAS-ALIAGA v. GREEN
MEMORANDUM OPINION. Signed by Judge Madeline Cox Arleo on 2/8/18. (cm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 17-5568 (MCA)
This matter has been opened to the Court by Petitioner’s filing of a Petition for a writ of
habeas corpus challenging his prolonged detention pursuant to 28 U.S.C.
§ 2241. For the
reasons explained in this Memorandum Opinion, the Court will deny the petition without
prejudice under Zadvydas v. Davis, 533 U.S. 678 (2001).
The Court recounts only the facts necessary to this Petition, which are taken from
Respondent’s Answer and relevant record.’ (ECF Nos. 6-7.) Petitioner, a native and citizen of
Venezuela, is a lawful permanent resident, who was admitted into the United States on July 1 7.
2008. (See ECF No. 7-1, Ex. A
Oral Decision of the Immigration Judge at 2.) On March 20
2015, Petitioner was convicted for burglary and received a sentence of six years. (Id.) On May
7, 2015, the Department of Homeland Security (“DHS”) issued a Notice to Appear (“NTA”) that
charged Petitioner as removable pursuant to section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act. (Id. at 1.)
On May 22, 2017, the Immigration Judge denied Petitioner’s applications of relief and
ordered him removed to Venezuela. (Id. at 11.) On October 6, 2017, the Board of Immigration
‘In the initial Answer, Respondent neglected to attach the exhibits; however, Respondent filed
copies of the exhibits on February 1,2018. (See ECF No. 7.)
Appeals dismissed the appeal and affirmed the Immigration Judge’s decision. (ECF No. 7-2, Ex.
Decision of the Board of Immigration Appeals.) It appears that Petitioner has not appealed
the BIA decision to the court of appeals or received a stay.
Once a removal order becomes administratively final, an alien’s detention is governed by
§ 1231. Under section 1231(a), following the entry of the final removal order, the
Government has 90 days to remove an alien from the United States. See 8 u.s.c.
1231(a)(1)(A)-(B). The Government must detain an alien with a final order of removal during
the 90-day removal period. See 8 U.S.C.
§ 123 1(a)(2) (‘During the [90-day] removal period, the
Attorney General shall detain the alien.”). The Supreme Court has held that detention during the
90-day removal period is reasonable and constitutional. See Zadvydas v Davis, 533 U.S. 678,
683 (2001) (“After entry of a final removal order and during the 90-day removal period, aliens
must be held in custody.
§ 123 1 (a)(2).”).
In Zadvydas, the Supreme Court further held that section 1231 (a)(6) does not authorize
the Attorney General to detain aliens indefinitely beyond the 90-day removal period, but “limits
alien’s removal from the United States.” See Zadvvdas. 533 U.S. at 689. The Court recognized
six months as a ‘presumptively reasonable period” of post-removal order detention. Id, at 701.
If, after the 6—month period expires, the alien provides good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future, the Government must
respond with evidence sufficient to rebut that showing. See Ed.
Petitioner is currently detained under a final order of removal pursuant to 8 U.S.C.
1231 (a)( 1), and his detention is governed by Zadvydas. His Order of Removal became
administratively final on October 6,2017, and the presumptively reasonable period to remove
him from the United States does not expire until April 6, 2018. As such, the Petition is
dismissal without prejudice under Zadvydas. The dismissal is without prejudice to Petitioner’s
filing of a new petition if he is not removed within the six-month presumptively reasonable
removal period and his removal is not reasonably foreseeable. An appropriate Order follows.
Madeline Cox Arleo, District Judge
United States District Court
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