ZHE v. GREEN
OPINION. Signed by Judge Kevin McNulty on 10/4/17. (cm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 17-7182 (KM)
KEVIN MCNULTY. U.S.D.J.
The petitioner, Noah Zhe, is an immigration detainee currently Field at the Essex County
Correctional Facility, in Newark, New Jersey. He is proceeding pro se with a petition for writ of
habeas corpus pursuant to 28 U.S.C.
2241. For the following reasons, the habeas petition will
be summarily dismissed without prejudice.
Petitioner is a native and citizen of China. Petitioner entered the United States with a K-4
visa in 2003 and resided here since that time. In 2010, petitioner was convicted of robbery and
kidnapping and began serving a ten-year sentence in South Woods State Prison, in Bridgeton,
New Jersey. Petitioner was released to the custody of Department of Homeland Security,
Immigration and Customs Enforcement (ICE) on March 17, 2017. ICE immediateLy served
petitioner with a notice to appear for immigration proceedings. 1-le has been in immigration
custody since that time.
Petitioner states that he has conceded his removability throughout the immigration
proceedings. An immigration judge (IJ) ordered petitioner removed on May 25, 2017. Petitioner
does not stale, and it does not otherwise appear, that he has taken any steps to appeal his removal
order.’ Petitioner does indicate that Lie requested release on bail or bond, but that the ICE
regional director denied this request.
Petitioner filed this habeas petition on September 18, 2017. He seeks, among other relief,
an order granting his immediate release from immigration detention, with or without bond, or,
alternatively, an order directing that a bond hearing occur before an IJ.
Upon the filing of a habeas petition, the Court conducts an initial screening under 28
2243, which provides in relevant part,
A court, justice or judge entertaining an application for a writ of habeas corpus
shall forthwith award the writ or issue an order directing the respondent to show
cause why the writ should not be granted, unless it appears from the application
that the applicant or person detained is not entitled thereto.
Under Rule 4 of the Rules Governing
of the Rules Governing
§ 2254 Cases (applied in this proceeding under Rule
2254 Cases), the Court must dismiss a habeas petition “[i]f it plainly
appears from the face of the petition and any exhibits annexed to it that the petitioner is not
entitled to relief” Rules Governing
2254 Cases, Rule 4. 28 U.S.C.A. foIl.
2254; see also
Lonchar v. Thomas, 517 U.S. 314, 320 (1996).
Petitioner seeks release from immigration detention or a bond hearing before an IJ based
on the length of his detention. (Pet., ECF No. 1.) Petitioner indicates that his immigration
custody falls under the authorization of 8 U.S.C.
1226(c). Under that section, certain criminal
aliens are subject to mandatory pre-removal detention. 8 U.S.C.
1226(c)(1). The United States
Court of Appeals for the Third Circuit, in Diop v ICE/Homeland Security. 656 F. 3d 221 (3d Cir.
‘Indeed, petitioner’s description of the immigration proceeding in his petition suggests that he
never intended to appeal his removal order.
2011), held that
1226(c)” authorizes only mandatory detention that is reasonable in length,”
after which a detainee would be entitled to a bond hearing. Id. at 234—35. The Third Circuit
subsequently noted that a continued pre-removal detention under
1226(c) without a bond
hearing would become constitutionally problematic at some point after six months of detention,
and certainly within one year. Chavez-Alvarez v, Warden York Cnty Prison, 783 F.3d 469, 478
(3d Cir. 2015)
The rights of a
1226(c) detainee, however, are no longer relevant in this case. Petitioner
states that an IJ issued an order for petitioner’s removal on May 25, 2017. (ECF No. I at 5.)
Under 8 C.F.R.
1241.1, a removal order becomes final if the time to appeal it elapses or the
party to be removed waives the right of appeal. See 8 C.F.R.
1241.1(b)—(c). Nothing suggests
that petitioner appealed his removal order within the 30 days permitted by immigration
regulations. See 8 C.F.R.
1250.15. Consequently, it appears that his removal order became
final on or around June 24, 2017, thus converting his custody from a pre-removal detention to a
post-removal detention. This conversion renders moot any assessment of whether petitioner’s
detention warrants pre-removal habeas relief. See Rodney v Mukasey, 340 F. App’x 761, 764 (3d
Cir. 2009); Quezada v. Hendricks. 821 F. Supp. 2d 702, 706 (D.N.J. 2011).
Post-removal immigration detention is governed by 8 U.S.C.
1231, which creates a
ninety-day removal period during which the government must detain aliens still awaiting
removal. 8 U.S.C.
123 l(a)(1)(A), (a)(2). Once the ninety-day removal period expires, the
government may continue to detain, or may release on bond, aliens who are deportable based on
various specified grounds, including conviction of an aggravated felony. Id.
123 1(a)(6); see 8
1227(a)(2)(A)(i)(I1); Zath’vdas v. Davis, 533 U.S. 678, 688—89 (2001).
An aggravated felony is defined as including any “theft offense.
imprisonment [is] at least one year.” 8 U.S.C.
for which the term of
§ I 101(a)(43)(G). Given petitioner’s conviction
for robbery under N.J.S,A. 2C: 15-I and his resulting ten-year prison sentence, detention beyond
the ninety-day removal period under
§ 1231 (a)(6), appears appropriate.2
The Supreme Court of the United States, in Zadvydas v. Davis, 533 U.S. 678, found that
§ 1231 does not authorize indefinite post-removal-period detention. Id. at 689. Instead, such
detention is limited “to a period reasonably necessary to bring about that alien’s removal from the
United States.” Id. The Court further noted that six months would be a “presumptively
reasonable” period of post-removal detention under
§ 1231. Id. at 701.
The petitioner acknowledges that an IJ issued an order of removal on May 25, 2017. If
petitioner promptly waived any right to appeal, the conversion to post-removal detention could
have occurred immediately, but in any event it occurred no later than the expiration of the
deadline to appeal at the end of June 2017. See 8 C.F.R.
§ 1241.1(b). Taking the earlier date,
however, the ninety-day removal period could have expired as early as August 24, 2017. Either
way. however, the period of post-removal detention would still be well within the six-month
period found presumptively reasonable in Zadvvdas. See 533 U.S. at 701.
Because petitioner’s ongoing detention is still presumptively reasonable, his challenge to
such detention is premature. See Rodney, 340 F. App’x at 764—65; Lemus Rivas v. Green, Civ. A.
No. 16-4195 (JMV), 2016 WL 8674267, at *2 (D.N.J. Dec. 2,2016); Mullings v Aviles, Civ. A.
No. 13-4111 (JLL), 2014 WL 1234469, at *3 (D.N.J. Mar. 25, 2014). Petitioner may, of course,
Petitioner’s convictions also seem to render him subject to § 123 1(a)(6) in various other ways,
e.g., conviction of two or more crimes with aggregate sentences of five or more years. See 8
U.S.C. § 11 82(a)(2)(B).
The Court currently has no evidence that petitioner affirmatively waived his right to appeal, but
he does indicate that he consistently conceded his removability, and the petition implies that he
never intended to appeal. (See Pet., ECF No. 1, at 13.)
reassert a claim challenging his post-removal detention should the government fail to effect his
removal within a reasonable time.
For the foregoing reasons, the habeas petition will be summarily dismissed without
prejudice. An appropriate order will be entered.
DATED: October 4, 2017
United States District Judge
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