MENDEZ NUNEZ v. DEPARTMENT OF HOMELAND SECURITY et al
Filing
2
OPINION filed. Signed by Judge Joel A. Pisano on 10/9/2012. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
OSCAR GARIBALDY MENDEZ NUNEZ, :
:
Petitioner,
:
:
Civil No. 12-6126 (JAP)
v.
:
:
DEPT. OF HOMELAND SEC., et al.,
:
OPINION
:
Respondents.
:
:
APPEARANCES:
OSCAR GARIBALDY MENDEZ NUNEZ, A 037-645-781
Elizabeth Detention Center
625 Evans Street
Elizabeth, New Jersey 07201
Petitioner Pro Se
PISANO, District Judge:
On September 26, 2012, Oscar Garibaldy Mendez Nunez, a native of the Dominican Republic,
filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging his detention at
Elizabeth Detention Center in the custody of the Department of Homeland Security (“DHS”) on the
grounds that it is not statutorily authorized and violates due process guaranteed by the Fifth
Amendment.1 This Court will summarily dismiss the Petition because Petitioner has not alleged facts
showing that his detention violates the Constitution or laws or treaties of the United States. See 28
U.S.C. § 2241(c)(3).
1
Petitioner did not pay the $5 filing fee or apply to proceed in forma pauperis. This Court
will therefore order him to pay the filing fee or submit an application to proceed in forma pauperis
within 30 days. See 28 U.S.C. § 2254 Rule 3(b) 2004 advisory committee’s note.
I. BACKGROUND
Petitioner is a native and citizen of the Dominican Republic. He entered the United States as
a lawful permanent resident on February 25, 1983. He alleges that he was convicted in the Criminal
Court of New York of possession of a controlled substance (on an unspecified date) and sentenced to
72 hours in jail. He asserts that he served this sentence and was transferred to the custody of DHS (on
an unspecified date). He alleges that on August 1, 2012, the Immigration Judge ordered him removed
to the Dominican Republic. Petitioner asserts “that his continued detention is not constitutional
pending the outcome of his appeal from the Board of Immigration Appeal (B.I.A.). Petitioner claims
that § 236 of the INA is inapplicable to him because the time that he was giv[en] was only (72) hours
for this charge.” (Dkt. 1 at 3.) With the exception of the final paragraph, the remainder of the Petition
cites various cases concerning 8 U.S.C. §§ 1226 and 1231. The Petition concludes:
Petitioner respectfully urges this Court to order DHS to conduct an individualized
bond hearing to determine Petitioner’s a flight risk and a danger to the community,
until such time that [] Petitioner’s appeal the Immigration Judge decision from
(August, 1st 2012) when petitioner was order[ed] remov[ed] from the [] United
State[s]. Petitioner’s detention thus far has been unreasonabl[y] prolonged and
unconstitutional due to his crime do[e]s not carry prolonged detention petitioner only
received (72) hours for his crime petitioner asking the Court to grant this Habeas and
have petitioner release[d] from detention.
(Dkt. 1 at 5.)
II. DISCUSSION
A. Jurisdiction
Under 28 U.S.C. § 2241(c), habeas jurisdiction “shall not extend to a prisoner unless . . . [h]e
is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2241(c)(3). A federal court has subject matter jurisdiction under § 2241(c)(3) if two requirements
are satisfied: (1) the petitioner is “in custody,” and (2) the custody is “in violation of the Constitution
2
or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490
(1989). This Court has subject matter jurisdiction over the Petition under § 2241 because Petitioner
was detained within its jurisdiction in the custody of the DHS at the time he filed his Petition, see
Spencer v. Kemna, 523 U.S. 1, 7 (1998), and he contends that his detention is not statutorily
authorized and violates due process. See Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d Cir.
2005).
B. Standard of Review
Habeas Rule 4 requires a district court to examine a habeas petition prior to ordering an answer
and to dismiss the petition if the petitioner is not entitled to relief. See 28 U.S.C. § 2254 Rule 4,
applicable through Rule 1(b). Habeas Rule 4 provides in relevant part:
The clerk must promptly forward the petition to a judge . . . and the
judge must promptly examine it. If it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled to relief in
the district court, the judge must dismiss the petition and direct the
clerk to notify the petitioner.
28 U.S.C. § 2254 Rule 4, applicable through Rule 1(b).
“Federal courts are authorized to dismiss summarily any habeas petition that appears legally
insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994); Siers v. Ryan, 773 F.2d 37,
45 (3d Cir. 1985). Dismissal without the filing of an answer or the State court record is warranted “if
it appears on the face of the petition that petitioner is not entitled to relief.” Id.; see also McFarland,
512 U.S. at 856; United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (habeas petition may be
dismissed where “none of the grounds alleged in the petition would entitle [the petitioner] to relief”).
3
C. Statutory Regime
The Immigration and Nationality Act (“INA”) authorizes the Attorney General of the United
States to issue a warrant for the arrest and detention of an alien pending a decision on whether the
alien is to be removed from the United States. See 8 U.S.C. § 1226(a) (“On a warrant issued by the
Attorney General, an alien may be arrested and detained pending a decision on whether the alien is
to be removed from the United States . . .”); Demore v. Kim, 538 U.S. 510 (2003) (“Detention during
removal proceedings is a constitutionally permissible part of that process”). Section 1226 governs the
pre-removal-period detention of an alien. Section 1226(a) authorizes the Attorney General to arrest
and detain an alien pending a decision on whether the alien is to be removed from the United States.
See 8 U.S.C. § 1226(a). Section 1226(a) authorizes the Attorney General to release an alien on bond,
pending a decision as to whether that alien is to be removed, “except as provided in subsection (c).”
Id. The exception in § 1226(c) commands that the Attorney General “shall take into custody any alien
[convicted of certain crimes] when the alien is released, without regard to whether the alien is released
on parole, supervised release, or probation, and without regard to whether the alien may be arrested
or imprisoned again for the same offense.” 8 U.S.C. § 1226(c)(1). An alien detained under § 1226(c)
must be detained until his removal is administratively final, regardless of whether he is a flight risk
or danger to the community, unless the Attorney General determines that the alien should be part of
the federal witness protection program, provided detention has not become unreasonably prolonged.
See Diop v. ICE/Homeland Sec., 656 F. 3d 221, 232 (3d Cir. 2011) (“At a certain point, continued
detention becomes unreasonable and the Executive Branch’s implementation of § 1226(c) becomes
unconstitutional unless the Government has justified its actions at a hearing inquiring into whether
4
continued detention is consistent with the law’s purposes of preventing flight and dangers to the
community”).
Once an alien’s order of removal is administratively final, the Attorney General is required to
remove him or her from the United States within a 90-day “removal period.” See 8 U.S.C. §
1231(a)(1)(A) (“Except as otherwise provided in this section, when an alien is ordered removed, the
Attorney General shall remove the alien from the United States within a period of 90 days (in this
section referred to as the ‘removal period’”). This 90-day removal period begins
on the latest of the following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a
stay of the removal of the alien, the date of the court’s final order.
(iii) If 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. § 1231(a)(1)(B).
Section § 1231(a)(2) requires the DHS to detain aliens during this 90-day removal period. See
8 U.S.C. § 1231(a)(2) (“During the removal period, the Attorney General shall detain the alien”).
However, if the DHS does not remove the alien during this 90-day removal period, then § 1231(a)(6)
authorizes the DHS to thereafter release or continue to detain the alien. See 8 U.S.C. § 1231(a)(6)
(“An alien ordered removed . . . may be detained beyond the removal period and, if released, shall be
subject to the terms of supervision in paragraph (3)”). See Zadvydas v. Davis, 533 U.S. 678 (2001).
D. Legality of Petitioner’s Detention
The Petition indicates that Mendez Nunez appealed the order of removal to the BIA, and the
BIA has not yet decided his appeal. In that case, his order of removal is not administratively final, his
5
removal period has not yet begun, see 8 U.S.C. § 1231(a)(1)(A)(i), and his pre-removal period
detention is governed by 8 U.S.C. § 1226. Mendez Nunez appears to challenge his mandatory preremoval period detention under 8 U.S.C. § 1226(c) on the following grounds: (1) although DHS took
him into custody when he was released from his 72-hour sentence, Petitioner contends that he is not
subject to mandatory detention under § 1226(c) and he is entitled to a bond hearing pursuant to §
1226(a) “because the time that he was giv[en] was only (72) hours for his charge” (Dkt. 1 at 3), and
(2) his pre-removal period detention has been unreasonably prolonged within the Third Circuit’s
holding in Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011), and Leslie v. Attorney
General, 678 F.3d 265 (3d Cir. 2012). This Court will consider each argument.
(1) Is Petitioner’s Detention Governed by § 1226(a)?
Mendez Nunez argues that, although he was transferred from the custody of New York to the
DHS when he was released from service of his 72-hour sentence,2 he is not subject to mandatory
detention under § 1226(c) (and he is entitled to a bond hearing pursuant to § 1226(a)) “because the
time that he was giv[en] was only (72) hours for his charge.” (Dkt. 1 at 3.)
This Court held in Sylvain v. Holder, 2011 WL 2580506 (D.N.J. June 28, 2011), that Sylvain
was not subject to mandatory detention under 8 U.S.C. § 1226(c) because DHS did not take him into
custody when he was released from criminal incarceration in 2007, but delayed taking him into
custody until April 12, 2011, and that his detention was governed by 8 U.S.C. § 1226(a). This Court
2
See Dkt. 1 at 2 (“Petitioner was convicted in the Criminal Court of New York for the
charge of possession of a controlled substance, to wit; cocaine. The time was giv[en] to petitioner
was (72) hours incarceration for which he served the entire sentence. He was then transferred to
(INS) for removal”).
6
granted the Petition for Writ of Habeas Corpus and directed the Immigration Judge to conduct a bond
hearing pursuant to § 1226(a).3
According to the facts set forth in the Petition, Petitioner’s detention is not governed by §
1226(a) under the holding of Sylvain because Mendez Nunez states in the Petition that he was
transferred to DHS custody when he was released from his 72-hour criminal sentence. Because
Mendez Nunez asserts that DHS took him into custody when he was released from criminal
incarceration, the Petition, as written, does not assert facts showing that Petitioner’s detention is
governed by 8 U.S.C. § 1226(a), rather than § 1226(c).4
(2) Is Petitioner’s Pre-Removal Period Detention Unreasonably Prolonged?
In Diop, the Third Circuit held that 8 U.S.C. Ҥ 1226(c) contains an implicit limitation of
reasonableness: the statute authorizes only mandatory detention that is reasonable in length . . . .
Should the length of [an alien’s] detention become unreasonable, the Government must justify its
continued authority to detain him at a hearing at which it bears the burden of proof.” Diop, 656 F.3d
at 235. The Third Circuit held that Diop’s mandatory pre-removal period detention of thirty-five
months was unreasonable in length. Id. at 233. In Leslie v. Attorney General of the United States, 678
F.3d 265 (3d Cir. 2012), the Third Circuit applied Diop and held that Leslie’s detention under §
1226(c) was unreasonable in length where Leslie had been mandatorily detained nearly four full years
(March 28, 2008, through March 19, 2012). The Leslie Court reversed the District Court’s order
3
The government’s appeal from this Court’s order granting a writ to Sylvain and directing
an Immigration Judge to conduct a bond hearing pursuant to 8 U.S.C. § 1226(a) is pending before
the Third Circuit. See Sylvain v. Holder, C.A. No. 11-3357 (3d Cir. docketed Aug. 31, 2011).
4
If this Court misconstrued Petitioner’s allegations, then he is free to file a motion for
reconsideration and to set forth specific facts regarding the date New York released him from his
72-hour criminal sentence and the date DHS took him into custody, if the dates are different.
7
denying Leslie’s petition for a writ of habeas corpus and remanded to the District Court with
instructions to conduct an individualized bond hearing, as required by Diop. Id. at 271.
In this Petition, Mendez Nunez does not assert facts showing that his mandatory pre-removal
period detention under § 1226(c) was unreasonable in length within the holdings of Diop and Leslie
because Mendez Nunez does not state the date on which DHS took him into custody pursuant to §
1226(c). Because Mendez Nunez does not specify the date on which DHS took him into custody, he
has not asserted facts showing that he has been detained under § 1226(c) for an unreasonably
prolonged period of time under Diop and Leslie.
To summarize, Petitioner does not assert facts showing that his detention violates the
Constitution, laws or treaties of the United States. Accordingly, he is not entitled to a writ under 28
U.S.C. § 2241(c)(3), and this Court will summarily dismiss the Petition. This Court emphasizes,
however, that the dismissal is without prejudice to Petitioner’s filing a new § 2241 petition (in a new
docket) asserting facts showing that his mandatory detention is not statutorily authorized or violates
due process.
8
III. CONCLUSION
For the reasons set forth above, the Court dismisses the Petition.
/s/ Joel A. Pisano
JOEL A. PISANO
United States District Court
DATED: October 9, 2012
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?