JOHNSON v. ELWOOD et al
Filing
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OPINION filed. Signed by Judge Joel A. Pisano on 11/29/2012. (eaj) Modified on 11/29/2012 (eaj, ).
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LINDEN JOHNSON,
Petitioner,
v.
BRIAN ELWOOD, et al.,
Respondents.
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Civil No. 12-7218 (JAP)
OPINION
APPEARANCES:
LINDEN JOHNSON, A 072 215 088, Petitioner Pro Se
Monmouth County Correctional Institution
1 Waterworks Road
Freehold, New Jersey 07728
PISANO, District Judge:
On November 13, 2012, Linden Johnson, a native and citizen of Jamaica, filed a Petition for
a Writ of Habeas Corpus under 28 U.S.C. § 2241, challenging his detention at Monmouth County
Correctional Institution in the custody of the Department of Homeland Security (“DHS”). Because
Johnson’s detention under 8 U.S.C. § 1231(a)(6) is presumptively reasonable, see Zadvydas v.
Davis, 533 U.S. 678, 701 (2001), this Court will dismiss the Petition.
I. BACKGROUND
Linden Johnson, a native and citizen of Jamaica, challenges his detention in the custody of
DHS at Monmouth County Correctional Institution in New Jersey. Johnson asserts that he was
admitted to the United States in 1989, and he became a lawful permanent resident on April 4, 1994.
On October 9, 1998, he pled guilty to criminal sale of marijuana in New York, and he was sentenced
to a $500 fine (which he paid). On January 28, 2005, he pled guilty in New York to criminal
possession of marijuana and was sentenced to a $500 fine (which he paid).
Johnson asserts that on July 28, 2011, DHS took him into custody. On December 22, 2011,
DHS issued a notice of custody determination stating that he will be detained pending a final
determination by the immigration judge and he may not request a review of the determination by an
immigration judge because the Immigration and Nationality Act, 8 U.S.C. § 1226(c), prohibits his
release from custody pending the outcome of the removal proceeding. On May 4, 2012, an
Immigration Judge ordered Johnson’s removal from the United States. Johnson appealed, and on
August 24, 2012, the Board of Immigration Appeals (“BIA”) dismissed the appeal. (Dkt. 1 at 4.)
See Matter of Johnson, 2012 WL 3911807 (BIA Aug. 24, 2012). Johnson does not assert that he
filed a petition for review in the Court of Appeals, but without further elaboration, he states that his
“attorney has requested for ICE to dismiss the removal proceedings.” (Dkt. 1 at 4.) This Court’s
independent research on PACER indicates that no petition for review has been filed.
Johnson executed the § 2241 Petition presently before this Court on November 13, 2012.
In the Petition, Johnson challenges his pre-removal period mandatory detention, pursuant to 8 U.S.C.
§ 1226(c), without the possibility of release on bond. First, he argues that his pre-removal period
detention is governed by 8 U.S.C. § 1226(a) (which allows the Immigration Judge to release him on
bond), rather than § 1226(c)(1) (which does not authorize release on bond), because DHS did not
take him into custody on January 28, 2005, when he was last sentenced for an offense specified in
8 U.S.C. § 1226(c)(1), but instead waited until July 28, 2011, when he was released from nonimmigration custody on a charge not related to the removable offenses. Second, he argues that he
is not subject to mandatory pre-removal period detention under § 1226(c) because he has a
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substantial claim that he is eligible for a § 212(c) waiver. He seeks an order directing DHS to show
within three days why he should not be immediately released from custody under supervision or why
this Court should not order a constitutionally adequate hearing at which DHS must show that his
detention is justified.
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 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 asserts that his detention is not
statutorily authorized and violates his constitutional rights. 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
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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”).
C. Legality of Detention
The statutory authority to detain an alien depends on where the alien is in the removal
process. See Leslie v. Attorney General of U.S., 678 F.3d 265, 268-71 (3d Cir. 2012). 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, or to release him or her on bond, “except as provided in subsection (c).” See 8
U.S.C. § 1226(a). The exception in § 1226(c) commands that the Attorney General “shall take into
custody any alien [specified in this subsection] 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 final, regardless of whether he is a
flight risk or danger to the community, unless the Attorney General determines that the alien should
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be part of the federal witness protection program, provided detention has not become unreasonably
prolonged. See Diop v. ICE/Homeland Sec., 656 F. 3d at 232 (“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
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 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 8 U.S.C.
§ 1231(a)(6) authorizes the DHS to thereafter release or continue to detain the alien. Specifically,
§ 1231(a)(6) provides:
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An alien ordered removed who is inadmissible under section 1182 of
this title, removable under section 1227(a)(1)(C), 1227(a)(2), or
1227(a)(4) of this title or who has been determined by the Attorney
General to be a risk to the community or unlikely to comply with the
order of removal, may be detained beyond the removal period and, if
released, shall be subject to the terms of supervision in paragraph (3).
8 U.S.C. § 1231(a)(6).
In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court held that § 1231(a)(6) does
not authorize the Attorney General to detain aliens indefinitely beyond the removal period, but
“limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that
alien’s removal from the United States.” Zadvydas, 533 U.S. at 689. To guide habeas courts, the
Supreme Court recognized six months as a presumptively reasonable period of post-removal-period
detention. Id. at 701.
After this 6-month period, once 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 postremoval 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.
Zadvydas, 533 U.S. at 701.
In his Petition, Johnson asserts that DHS is confining him under 8 U.S.C. § 1226(c), which
does not allow an alien to be released on bond, even if he or she is neither a flight risk nor a danger
to the community. He asks this Court to find that his detention is governed by § 1226(a), which
authorizes his release on bond. But the BIA dismissed his appeal from the order of removal on
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August 24, 2012, and Johnson does not allege that he filed a petition for review or that the BIA has
reopened his removal proceeding. Accordingly, Johnson’s order of removal became administratively
final on August 24, 2012, when the BIA affirmed the Immigration Judge and dismissed his appeal.1
Since 8 U.S.C. § 1231(a)(1)(B)(i) provides that the removal period begins on the “date the order of
removal becomes administratively final,” Johnson’s removal period began on August 24, 2012. The
removal period ran from August 24, 2012, through November 24, 2012. As previously explained,
§ 1231(a)(2) requires the DHS to detain aliens during this 90-day removal period. See 8 U.S.C. §
1231(a)(2). The six-month presumptively reasonable period of post-removal-period detention under
Zadvydas will not expire until February 24, 2013. Therefore, Johnson’s detention until February 24,
2013, is presumptively reasonable under the holding of Zadvydas.
Moreover, even if Johnson’s presumptively reasonable period of post-removal period
detention were expired, he would not be entitled to habeas relief on this Petition because he does not
assert facts “provid[ing] good reason to believe that there is no significant likelihood of removal in
the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701; see also Barenboy v. Attorney
General of U.S., 160 Fed. App’x 258, 261 n.2 (3d Cir. 2005) (“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 . . . . Only then does the burden shift to
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An order of removal becomes “final upon the earlier of - (i) a determination by the
Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which
the alien is permitted to seek review of such order by the Board of Immigration Appeals.” 8
U.S.C. § 1101(a)(47)(B); see also 8 C.F.R. § 1241.1; Giraldo v. Holder, 654 F.3d 609, 611 (6th
Cir. 2011); Hakim v. Holder, 611 F.3d 73, 77 (1st Cir. 2010); Chupina v. Holder, 570 F.3d 99,
103 (2d Cir. 2009); United States v. Calderon-Minchola, 351 Fed. App’x 610, 611 n.1 (3d Cir.
2009).
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the Government, which must respond with evidence sufficient to rebut that showing”) (citation and
internal quotation marks omitted).
To summarize, Johnson’s detention is statutorily authorized by § 1231(a)(6), as interpreted
by Zadvydas, because he has not been detained longer than the presumptively reasonable six-month
period, which began on August 24, 2012, and will not end until February 24, 2013. This Court will
dismiss the Petition because Johnson does not assert facts showing that his detention is statutorily
unauthorized or violates due process.2 See, e.g., Akinwale v. Ashcroft, 287 F. 3d 1050, 1052 (11th
Cir. 2002) (“in order to state a claim under Zadvydas the alien not only must show post-removal
order detention in excess of six months but also must provide evidence of a good reason to believe
that there is no significant likelihood of removal in the reasonably foreseeable future”).
III. CONCLUSION
The Court will dismiss the Petition.
/s/ Joel A. Pisano
JOEL A. PISANO, U.S.D.J.
DATED: November 29, 2012
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The dismissal is without prejudice to the filing of a new § 2241 petition (in a new case)
in the event that: (1) the BIA vacates the order of removal, or (2) the six-month presumptively
reasonable period of detention has expired (on February 24, 2013) and Johnson can allege facts
showing that there is good reason to believe that there is no significant likelihood of his removal
to Jamaica in the reasonably foreseeable future. See Akinwale, 287 F. 3d at 1052 (“Because
circumstances may ultimately change in [petitioner’s] situation, we affirm the dismissal [of his
habeas petition] without prejudice to [his] ability to file a new § 2241 petition in the future”). In
addition, if Petitioner believes he is unlikely to be removed in the near future, he may request the
DHS to review his situation. See 8 C.F.R. § 241.13(d)(1) (“An eligible alien may submit a
written request for release to the HQPDU asserting the basis for the alien's belief that there is no
significant likelihood that the alien will be removed in the reasonably foreseeable future. The
alien may submit whatever documentation to the HQPDU he or she wishes in support of the
assertion that there is no significant likelihood of removal in the reasonably foreseeable future”).
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