FORBES v. EDWARDS

Filing 2

OPINION. Signed by Chief Judge Jose L. Linares on 1/22/2018. (JB, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MAXINE FORBES,

Civil Action No. 18-249 (JLL)

Petitioner,
v.

OPINION

RON EDWARDS,

Respondent.

LINARES, Chief District Judge:

Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Maxine
Forbes, filed pursuant to 2$ U.S.C.

§ 2241.

(ECF No. 1). As Petitioner has paid the requisite filing

fee, this Court is required by Rule 4 of the Rules Governing Section 2254 cases, applicable to

§

2241 petitions through Rule 1(b), to preliminarily review her petition and determine whether it
“plainly appears from the petition and any attached exhibits that the petitioner is not entitled to
relief.”

For the following reasons, this Court will dismiss the petition without prejudice as

premature.

I. BACKGROUND

Petitioner, Maxine Forbes, is a citizen of Jamaica. (ECF No. 1 at 2). On June 22, 2017,
an immigration judge ordered her removal. (Id.). She appealed that removal order, but the Board
of Immigration Appeals affirmed her order of removal and dismissed her appeal on December 6,
2017. (Id.). Petitioner has apparently filed a petition for review which remains pending at this
time before the Third Circuit. (Id. at 3). It does not appear that Petitioner has sought or received

a stay of removal at this time. (Id.). On or about January 9, 2018, Petitioner filed her current
petition seeking to challenge the propriety of her ongoing immigration detention pending her
removal from the United States. (ECF No. I).

H. DISCUSSION
A. Legal Standard

Under 2$ 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 that custody is allegedly “in violation of the Constitution or laws or treaties of the United
States.” 2$ U.S.C.

§ 2241(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 her continued detention violates due process, this Court has jurisdiction over her
claims. Spencer v. Keinna, 523 U.S. 1, 7 (199$); Braden v. 30th Jttdiciat Circttit Cottrt, 410 U.S.
484, 494—95, 500 (1973).
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, applicable to Section 2241
petitions through Rule 1(b), the Court is required to preliminarily review habeas petitions and
determine whether it “plainly appears from the petition and any attached exhibits that the petitioner
is not entitled to relief.” Pursuant to this rule, the Court is “authorized to dismiss summarily any
habeas petition that appears legally insufficient on its face.” i3vicfartand v. Scott, 512 U.S. 849,
$56 (1994).

2

B. Analysis

Petitioner seeks to challenge her ongoing immigration detention pending her removal from
the United States. Petitioner is subject to an administratively final order of removal, as the Board
of Immigration Appeals affirmed her removal order in June 2017. (ECF No. I at 2). Petitioner is
thus currently detained pursuant to $ U.S.C.

§ 1231(a), and the propriety of her continued detention

is controlled by the Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678 (2001). In
Zathydas, the Court observed that

§ 123 1(a) requires the Government to detain all aliens subject

to administratively final orders of removal during a 90-day stattitory removal period. 501 U.S. at
683. The Court further held that the statute permits the Government to detain aliens beyond that
90-day period so long as their detention remains “reasonably necessary” to effectuate their
removal. Id. at 689, 699. Based on these observations, the Court in turn determined that an alien
may be detained under

§ 123 1(a) for a period of up to six months following his final order of

removal during which his continued detention must be presumed to be reasonable and therefore
not violative of Due Process. Id. at 701. Thus, where a removable alien has been detained under

§ 123 1(a) for less than six months following the entry of his final order of removal, his challenge
must be dismissed as premature. Id.; see also Rodney v. Mukasev, 340 F. App’x 761, 764—65 (3d
Cir. 2009).
In this matter, Petitioner received a final order of removal when the Board of Immigration
Appeals dismissed her appeal on December 6, 2017. Because just over thirty days have passed
since the entry of her final order of removal, Petitioner is well within the removal period during
which the Government is required to detain her. As such. this Court is required by Zadvvdas to

3

____,2018

presume that her detention is reasonable, and any challenge to that detention at this time is
premature. Petitioner’s current petition must therefore be dismissed.1

III. CONCLUSION
For the reasons expressed above, this Court will dismiss Petitioner’s petition for a writ of
habeas corpus (ECF No. 1) without prejudice as premature. An appropriate order follows.

DATED: January
Chief Judge, United States District Court

‘In addition to her challenge to her ongoing immigration detention. Petitioner also contends that her current facility
lacks the proper medical facilities to treat her right leg following a recent surgery. (ECF No. I at 7). Claims
regarding a Petitioner’s medical treatment needs, however, “do not lie at the ‘core of habeas’ and, therefore, are not
cognizable in a § 2241 petition.” See, e.g., Lee v. Williamson, 297 F. App’x 147, 148 (3d Cir. 2008). Petitioner’s
medical claims must therefore also be dismissed at this time.
4