TOGRA-RIVERA v. HARRIGAN et al
Filing
2
OPINION filed. Signed by Judge Freda L. Wolfson on 11/15/2012. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JORGE TOGRA-RIVERA,
Petitioner,
v.
C. HARRIGAN et al.,
Respondents.
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Civil Action No. 12-6895 (FLW)
O P I N I O N
Wolfson, District Judge:
This matter comes before the Court upon the Clerk's receipt
of Jorge Togra-Rivera's ("Petitioner") Petition, seeking a writ
of habeas corpus pursuant to 28 U.S.C. § 2241.
No. 1.
See Docket Entry
The Petition arrived accompanied by Petitioner's motion t
proceed without payment of filing fee, which this Court construes
as Petitioner's in forma pauperis ("IFP") application.
See
Docket Entry No. 1-1.
For the reasons set forth below, Petitioner's IFP
application will be denied without prejudice, and the Petition
will be dismissed for failure to assert a violation of
Petitioner's federal rights.
However, Petitioner will be granted
leave to file an amended pleading.
I.
BACKGROUND
Petitioner is an alien detainee challenging his detention by
the Department of Homeland Security ("DHS") at Monmouth County
Correctional Institution.1
submission.
His Petition is a rather lengthy
See, generally, Docket Entry No. 1.
However, the
Petition alleges mainly pre-printed legal statements, see id.,
while the factual information pertaining to Petitioner's own
circumstances is scarce.2
Indeed, the only facts this Court could gather from
carefully examining the Petition are that: (a) Petitioner is a
native and citizen of Ecuador, see id. at 2; (b) Petitioner
entered the United States by illegally crossing the nation's
Texan border on August 5, 2005, see id. at 3; (c) at certain,
unspecified in the Petition date(s), Petitioner committed
certain, unspecified in his Petition, criminal offense(s), and
said offense(s) resulted in his criminal conviction(s) and
incarceration, see id.; (d) that incarceration ended on April 24,
2012, see id.; and (e) on the same day, Petitioner was
1
Petitioner's submission makes frequent references to
"ICE." See Docket Entry No. 1. "ICE" means U.S. Immigration and
Customs Enforcement, which is "the principal investigative arm of
the [DHS]." See <>.
2
"Habeas corpus petitions must meet heightened pleading
requirements." McFarland v. Scott, 512 U.S. 849, 856 (1994). A
petition must "specify all the grounds for relief" and set forth
"facts supporting each of the grounds thus specified." 28 U.S.C.
§ 2254 Rule 2(c) (amended Dec. 1, 2004, applicable to § 2241
petitions through Habeas Rule 1(b)) (emphasis supplied).
2
transferred from his penal confinement into ICE custody, see id.;
although (f) Petitioner had been ordered removed by a certain
immigration judge long ago, that is, on November 18, 2005 (i.e.,
three-and-a-half months after his illegal entry in the United
States).
See id. at 6.
On the basis of the foregoing facts,
Petitioner seeks either this Court's order directing an
immigration judge to hold a bond hearing as to the validity of
Petitioner's current confinement or an order directing
release.
See id.
his
Petitioner seeks these remedies on the grounds
that his "removal cannot be accomplished in the reasonably
foreseeable future" because "Petitioner has [been in ICE] custody
. . . for a total of approximately six months and 1 week."
Id.
at 3 and 6.
II.
DISCUSSION
A.
Jurisdiction
Under 28 U.S.C. § 2241(c), habeas jurisdiction "shall not
extend to a prisoner unless . . . he is in custody in violation
of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2241(c)(3).
Federal courts have subject matter
jurisdiction under 28 U.S.C. § 2241(c)(3) if two requirements are
satisfied, namely, that (1) the petitioner is "in custody," and
(2) the custody is "in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C. § 2241(c)(3); see
Maleng v. Cook, 490 U.S. 488, 490 (1989).
3
also
In this case, Petitioner is in custody within this Court's
jurisdiction, and has alleged that his detention is not
statutorily authorized.
Accordingly, the Court will exercise
subject matter jurisdiction over the Petition.
Accord Zadvydas
v. Davis, 533 U.S. 678, 699 (2001); Diop v. ICE/Homeland
Security, 656 F.3d 221, 226 (3d Cir. 2011).
B.
Principles Governing Pre-Removal and Removal Periods
The critical shortcoming of Petitioner's application stems
from his conflation of the legal principles applicable to habeas
challenges raised by "pre-removal-period" aliens and habeas
claims raised by "removal-period" detainees.
The aforesaid distinction cannot be duly appreciated without
a clarification of what the meaning of the term "removal period"
is, since this is a legal term of art provided by the relevant
statutory language.
Specifically, Section 1231(a)(1)(A) provides
that the government has a 90-day "removal period" to remove an
alien from the United States.
Detention during that "removal"
period is mandatory3 and, in addition, § 1231(a) provides that
this "removal period" shall be extended, and the alien may remain
in detention during such extended period, if the alien "acts to
3
Section 1231(a)(2) mandates detention during the removal
period. See 8 U.S.C. § 1231(a)(2) ("During the removal period,
the Attorney General shall detain the alien. Under no
circumstance during the removal period shall the Attorney General
release an alien who has been found inadmissible under section
212(a)(2) or 212(a)(3)(B)").
4
prevent the alien's removal [ensuing from his/her] order of
removal."
8 U.S.C. § 1231(a)(1)(C).
This "removal period" starts on the latest of the following:
(a) the date when the order of removal becomes administratively
final (that is, appeal to the Board of Immigration Appeals
("BIA") was either taken and ruled upon, or the time to appeal
expired); or (b) if the removal order is judicially reviewed and,
in addition, if a circuit court orders a stay of the removal,
then it is the date of the court's final order as to that
removal, or (c) if the alien is detained or confined (except
under an immigration process), then it is the date when the alien
is released from confinement.4
See 8 U.S.C. § 1231(a)(1)(B).
Moreover, even after the 90-day "removal period," the
government may further detain the alien, under 8 U.S.C. §
1231(a)(6), for a "certain" period of time.
Specifically, recognizing that some countries might
never agree - or be able - to accept their citizens
awaiting to be removed there from the United States
and, thus, these detainees might end up being detained
"indefinitely" (i.e., effectively spending the
remainder of their lives in confinement awaiting their
never-materializing removal), the Supreme Court held
that aliens may be detained under § 1231(a)(6) for "a
period reasonably necessary to bring about that alien's
removal from the United States." Zadvydas v. Davis,
533 U.S. at 689.
4
Here, Petitioner maintains that his order of removal
became final in 2005, but he was released from his penal
confinement into ICE custody only on April 24, 2012. If this
Court were to presume Petitioner's factual assertions true,
Petitioner's removal period began to run on April 25, 2012.
5
Hany El Sayed v. Holder, 2012 U.S. Dist. LEXIS 16808, at *7-8
(D.N.J. Feb. 9, 2012).
Being mindful that its holding would lead to difficult
judgment calls in the courts, the Supreme Court, "for the sake of
uniform administration in the federal courts," recognized a
six-month "presumptively reasonable period of detention."
Zadvydas, 533 U.S. at 700-01 (emphasis supplied).
Yet, after
establishing this presumptively reasonable period of detention,
the Supreme Court stressed, in no ambiguous terms, that even
[a]fter this 6-month period, o[nly if] 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. And for
detention to remain reasonable, as the period of prior
post-removal confinement grows, what counts as the
"reasonably foreseeable future" conversely would have
to shrink. This 6-month presumption, of course, does
not mean that every alien not removed must be released
after six months. To the contrary, an alien may be
held in confinement until it has been determined that
there is no significant likelihood of removal in the
reasonably foreseeable future.
Id. at 701 (emphasis supplied).5
5
In addition, since no language in Zadvydas excluded or
limited the operation of the tolling-like function enunciated in
8 U.S.C. § 1231(a)(1)(C), an alien who, during his presumptive
Zadvydas-based period, takes actions delaying his removal (e.g.,
by refusing to cooperate with the ICE in his/her removal to
his/her country of origin), cannot demand his/her release upon
expiration of these six months. See, e.g., Wang v. Carbone, 2005
U.S. Dist. LEXIS 24499 (D.N.J. Oct. 17, 2005) (calculating the
presumptive period excluding the period of non-cooperation and
relying on Riley v. Greene, 149 F. Supp. 2d 1256, 1262 (D. Colo.
2001), and Sango-Dema v. District Director, 122 F. Supp. 2d 213,
221 (D. Mass. 2000)). Rather, the period affected by the alien's
6
Indeed, the burden is on the alien to "show[ that] that
there is 'no significant likelihood of removal in the reasonably
foreseeable future.'"
Encarnacion-Mendez v. Attorney General of
U.S., 176 F. App'x. 251, 254 (3d Cir. 2006).
As the Court of
Appeals explained,
Once the six-month period has passed, the burden is on
the alien to 'provide [ ] good reason to believe that
there is no significant likelihood of removal in the
reasonably foreseeable future . . . .' Zadvydas v.
Davis, 533 U.S. 678, 701 (2001). Only then does the
burden shift to the Government, which 'must respond
with evidence sufficient to rebut that showing.' Id.
Barenboy v. Attorney General of U.S., 160 F. App'x 258, 261 n. 2
(3d Cir. 2005).
Significantly, mere passage of time is facially insufficient
to meet alien's burden of proof.
See Fahim v. Ashcroft, 227 F.
Supp.2d 1359, 1365-68 (N.D. Ga. 2002); Boyce v. Holder, 2010 U.S.
Dist. LEXIS 21435 (M.D. Pa. Feb. 18, 2010) (the fact that a
Panama-native was held in detention awaiting removal in excess of
obstructive actions is excluded from the presumptive period
articulated in Zadvydas, thus causing a quasi-tolling mimicking,
in its operation, the tolling articulated in § 1231(a)(1)(C).
Indeed, it would be anomalous to suggest that an alien's
frustration of the government's efforts to remove him/her would
reward the alien with release from custody if the alien is
persistent enough to keep his/her thwarting activities for a
period exceeding Zadvydas-based six months. "Zadvydas does not
save an alien who fails to provide requested documentation to
effectuate his removal. The reason is self-evident: the detainee
cannot convincingly argue that there is no significant likelihood
of removal in the reasonably foreseeable future if the detainee
controls the clock." Pelich v. INS, 329 F.3d 1057, 1060 (9th
Cir. 2003).
7
six months could not establish that his detention was unlawful
where his removal proceedings were underway and the Government
was in the process of obtaining his travel documents, having
cooperation of Panama officials); Peynado v. Bureau of
Immigration & Custom Enforcement, 2009 U.S. Dist. LEXIS 3538, at
*6 (M.D. Pa. Jan. 20, 2009) ("Not every alien must be released
after six months.
An alien may still be detained beyond six
months 'until it has been determined that there is no significant
likelihood of removal in the reasonably foreseeable future'")
(quoting Zadvydas, 533 U.S. at 701); compare Seretse-Khama v.
Ashcroft, 215 F. Supp. 2d 37, 48-54 (D.D.C. 2002) (a postremoval-order continued detention for over three years, coupled
with eight-month delay since the Government last contacted
destination country, suffices to meet alien's burden); but see
Lema v. U.S. I.N.S., 214 F. Supp. 2d 1116, 1118 (W.D. Wash 2002),
aff'd on other grounds, 341 F.3d 853 (9th Cir. 2003) (where
destination country's lack of response to request for travel
documents is combined with the Government's inability to explain
silence and absence of any indication that situation may change,
continued detention would be unreasonable but, where destination
country's failure to respond suggests nothing more than
"bureaucratic inertia," removal remains "foreseeable").
In contrast, an alien held in the ICE custody during the
time which cannot qualify as the alien's "removal period" has no
8
basis to raise Zadvydas challenges (and, correspondingly, no
basis to seek outright release); rather, that alien could raise
habeas claims seeking a qualitatively different habeas relief,
i.e., a remedy in the form of a bond hearing, which could be
ordered in the event the alien has been held for a prolonged
period of time under § 1226(c) (that is, the statute, which does
not expressly provide for a bond hearing).6
Analogously, a pre-
removal-period alien detainee held in custody as a result of the
Government erroneous interpretation of the mandatory detention
provision contained in § 236(c) of the Immigration and
Nationality Act, codified at 8 U.S.C. § 1226(c), may seek habeas
relief in the form of a bond hearing before an immigration judge
if that alien can show that he should be deemed a § 1226(a)
rather than a § 1226(c) detainee.
See, e.g., Baguidy v. Elwood,
2012 U.S. Dist. LEXIS 158254 (D.N.J. Nov. 5, 2012); Nimako v.
6
Although the Supreme Court, in Demore v. Kim, held that
Section 1226(c) "detention during deportation proceedings [is] a
constitutionally valid aspect of the deportation process," see
538 U.S. 510, 523 (2003), the Court of Appeals recently finessed
the holding of Demore by ruling that
§ 1226(c)[] . . . implicitly authorizes detention for
[only] a reasonable amount of time, after which the
authorities must make an individualized inquiry into
whether detention is still necessary to fulfill the
statute's purposes of ensuring that an alien attends
removal proceedings and that his release will not pose
a danger to the community.
Diop, 656 F.3d at 231.
9
Shanahan, 2012 U.S. Dist. LEXIS 133110 (D.N.J. Sept. 18, 2012);
Kot v. Elwood, 2012 U.S. Dist. LEXIS 61346 (D.N.J. May 2, 2012).
However, this form of remedy and these legal analyses appear
inapplicable to Petitioner's circumstances, since he maintains
that his order of removal has become final, and that he is in the
process of being removed to his country of origin.
C.
Petitioner's Allegations Failed to Shift the Burden
In light of the foregoing, the Court construes that
Petitioner asserted only Zadvydas-governed challenges.
generally, Docket Entry no. 1.
See,
However, the entirety of his
argument in support of his position that there is no significant
likelihood of his removal to Ecuador in the reasonably
foreseeable future rests on the sole point that, thus far, the
Government has taken one week longer than the non-binding
presumptive period suggested in Zadvydas in order to effectuate
Petitioner's removal to his country of origin.
This Court does
not find such mere passage-of-time sufficient to shift the burden
to the Government.
See Zadvydas, 533 U.S. at 701; Barenboy 160
F. App'x at 261 n. 2; Fahim, 227 F. Supp. 2d at 1365-68 (N.D. Ga.
2002); Boyce, 2010 U.S. Dist. LEXIS 21435; Peynado, 2009 U.S.
Dist. LEXIS 3538, at *6.
Indeed, political instability in Ecuador has ended in 2006,
see <>, and that
country was been extensively cooperating with the United States
10
officials in effectuating removal of Ecuadorian citizens.
See
<> and <> (showing continuous year-to-year increase in
removal of aliens to Ecuador starting from 2008, with the number
of removed aliens in 2009 exceeding 2,000 and approaching 3,000
in 2011). Accordingly, this Court is constrained to dismiss the
Petition, as drafted.7
However, being mindful of Petitioner's pro se litigant
status, the Court cannot rule out the possibility that Petitioner
might be able to articulate a viable Zadvydas claim: since he
might be able to assert facts (reflecting on his personal
circumstances) showing that there is no likelihood of his removal
to Ecuador within foreseeable future regardless of his past and
present active cooperation with the Government in its efforts to
remove him.
Therefore, in the event Petitioner elects to assert
7
Under 28 U.S.C. § 2241(c), habeas jurisdiction "shall not
extend to a prisoner unless . . . he is in custody in violation
of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2241(c)(3). Thus, 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 could be "in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C. § 2241(c)(3); see also
Maleng, 490 U.S. at 490. Consequently, this Court could have
subject matter jurisdiction over Petitioner's pleading only if he
asserts facts showing that his detention is not statutorily
authorized or violates his constitutional rights.
11
additional facts sufficient to raise a Zadvydas challenge, he may
do so in an amended petition.
Finally, in light of Petitioner's failure to submit a
complete IFP application,8 the Court will direct Petitioner to
appropriately apply for IFP status in conjunction with
Petitioner's submission of his amended pleading, if any.
III. CONCLUSION
For the foregoing reasons, Petitioner application to proceed
in this matter in forma pauperis will be denied without
prejudice.
His Petition will be dismissed, such dismissal will be with
leave to amend.
An appropriate Order accompanies this Opinion.
8
In a habeas matter, the prisoner seeking to proceed IFP
must submit to the Clerk: (a) a completed affidavit of poverty;
and (b) a certification signed by an authorized officer of the
institution certifying both the amount presently on deposit in
the petitioner's prison account as well as the greatest amount on
deposit in the petitioner's prison account during the six month
period prior to the date of the certification. See Local Civil
Rule 81.2(b). The prisoner's legal obligation to prepay the
filing fee or to duly obtain IFP status is automatically incurred
by the very act of initiation of his legal action. See Hairston
v. Gronolsky, 2009 U.S. App. LEXIS 22770, at *5 (3d Cir. Oct. 15,
2009) (citing Hall v. Stone, 170 F.3d 706, 707 (7th Cir. 1999)).
Here, Petitioner submitted a motion, see Docket Entry No. 1-1,
the language of which could, loosely, qualify as an affidavit of
poverty. However, Petitioner submitted no certification of his
prison account. Because Petitioner is granted an opportunity to
amended his pleading, he may submit a proper certification
supporting his IFP application together with his amended petition
should he choose to re-file.
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/s/ Freda L. Wolfson
Freda L. Wolfson,
United States District Judge
Dated:
November 15, 2012
13
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