ASANTE v. RODRIGUEZ
Filing
8
OPINION. Signed by Judge Kevin McNulty on 06/21/2018. (sms)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DANIEL A.,
Civ. No. 17-8295 (KMj
Petitioner,
V.
OPINION
ORLANDO RODRIGUEZ,
Respondent.
KEVIN MCNULTY, U.S.D.J.
I.
INTRODUCTION
Petitioner, Daniel A.,’ is an immigration detainee currently held at the Elizabeth
Detention Center, in Elizabeth, New Jersey. He is proceeding pro se with a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. For the following reasons, the habeas petition will
be denied without prejudice.
II.
BACKGROUND
Petitioner is a native and citizen of Ghana. He entered the United States on October 27.
2016, seeking asylum. and lie has been detained by the Department of Homeland Security,
Immigration and Customs Enforcement, riCE”) since that time.
Petitioner flied this habeas petition on October 13, 20] 7, challenging the duration of his
detention. He seeks an order directing that a bond hearing take place before an immigration
judge (“Ii”). Respondent tiled a response in opposition to the habeas petition, arguing that
Petitioner was entitled to no bond hearing as he was detained under 8 U.S.C. § 1225(b). In reply,
Consistent with guidance regarding privacy concerns in social security and immigration cases by
the Committee on Court Administration and Case Management of the Judicial Conference of the United
States, Petitioner is identified in this publicly filed opinion only by his first name and last-name initial.
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Petitioner contends that persons detained tinder § 1225(b) should receive the same due-process
protections—particularly an individualized bond hearing—as aliens detained tinder other
statutes.
Respondent has notified the Court that, on March 23, 2018, the Board of Immigration
Appeals (“BIN’) dismissed an appeal by Petitioner of his order of removal. A review of court
filings indicates that Petitioner has not filed a petition for review by the United States Court of
Appeals for the Third Circuit. The order of removal, then, is final.
III.
DISCUSSION
Petitioner seeks a bond hearing before an Ii based on the length of his detention. (Pet..
ECF No. 1.) As ICE issued Petitioner a notice to appear for immigration proceedings when he
was attempting to enter the country and seeking asylum, he was initially detained as an applicant
for admission tinder 8 U.S.C. § 1225(h). See 8 U.S.C. § 1225(b)(l )(B)(ii); Jennings
i
Rodriguez,
138 S. Ct. 830. 842—45 (2018).
Detention of an applicant for admission pending further consideration of an asylum
petition or a removal proceeding is mandated by § 1225(b). See ii Controlling statutes and
regulations do not provide for bond hearings concerning persons detained tinder § 1225(b). SeeS
C.F.R. §* 235.3(c), 1003.] 9(1 )(2)(i)(B).2 The rights of a § 1225(b) detainee, however, are no
longer relevant in this case, as the BIA’s dismissal of Petitioner’s appeal converted his detention
from pre- to post-removal. See icL § 1241.1(a). Such post-removal immigration detention is
governed by an entirely different statutory scheme, under 8 U.S.C. § 1231. The question of
Cases from this district have recognized that due-process concerns may. under certain
circumstances, justify bond hearings for § 1225(b) detainees. See Donuts i’. Tcoukaris, Civ. A. No. 16—
933 (iLL). 2016 WL 4203816, at *2 (D.N.J. Aug. 8.2016). For the reasons expressed in text, the point
is moot as to this post-removal detainee.
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whether Petitioner’s detention warranted pre-rernoval habeas relief is therefore moot. See Rodney
i’.
Mukcisev, 340 F. App’x 76!, 764 (3d Cir. 2009); Qz,ecada
i’.
Hendrk*s. 82! F. Supp. 2d 702,
708 (D.N.J. 2011).
The pre-remova! period expired 90 days ago. As the arguments raised in Petitioner’s
filings are no longer applicable, the petition will be denied without prejudice.
Detention is mandatory for the first 90 days of the post-removal period (i.e., the period
that expires today), and may continue for some time after that. See 8 U.S.C. * 123!. Section
1231 does not authorize indefinite post-removal-period detention, however. Zadi’vdas
i’.
Dai’is,
533 U.S. 678, 689 (2001). Such detention is limited “to a period reasonably necessary to bring
about that aliens removal from the United States.” Id. Six months, said the Court, would be a
“presumptively reasonable” period of post-removal detention tinder § 123!. ftL at 701. Should
Petitioner wish to challenge the duration of his post-removal detention, he may do so by filing a
new habeas petition under § 2241 or by seeking leave to tile an amended habeas petition in this
proceeding.
IV.
CONCLUSION
For the foregoing reasons, the habeas petition will be denied without prejudice. An
appropriate order will be entered.
já&’4 zJ4Jy
DATED: June 21. 2018
KEVIN MCNULTY
United States District Judge
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