HASBUN v. ELWOOD et al

Filing 4

OPINION filed. Signed by Judge Freda L. Wolfson on 8/13/2013. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

FERNANDO ARTURO HASBUN,
Petitioner,
v.
BRIAN ELWOOD, et al.,
Respondents.

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Civil No. 13-1409 (FLW)

OPINION

APPEARANCES:
Fernando Arturo Hasbun, Pro Se
A# 038-504-739
Hudson County Correctional Institution
30-35 Hackensack, 3 North
Kearny, NJ 07032
WOLFSON, District Judge
Petitioner Fernando Arturo Hasbun (“Petitioner”), an
immigration detainee, was detained at the Monmouth County
Correctional Center, Freehold, New Jersey, when he submitted this
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
As a native and citizen of the Dominican Republic, Petitioner
admits that he was sentenced in New York state for drug offenses,
and taken into criminal custody for these removable offenses on April
2, 2008 (Petition, ¶¶ 9, 17).

He was sentenced to a term of one year

of imprisonment, and five years of probation.

He was released from

custody in May of 2008, but not detained by the Bureau of Immigration
and Customs Enforcement (“ICE”) until July 25, 2012, over four years
after his release from prison and with ten months remaining on his
probation term.
¶¶ 9, 28).

He has been detained by ICE since that date.

(Pet.,

Petitioner does not have a final order of removal and

is awaiting a hearing for relief under the Convention Against Torture
(Pet., ¶ 19).
Petitioner contends that he is not subject to mandatory
detention without a bond hearing under 8 U.S.C. § 1226(c), because
he was not taken into ICE custody when released from prison for a
removable offense, (Pet., ¶ 291), and because he is not a danger to
the community (Pet., ¶ 21).
On April 22, 2013, the Court of Appeals for the Third Circuit
resolved the same type of challenge raised by Petitioner, holding
that, even if 8 U.S.C. § 1226(c)(1) calls for detention when an alien
was released, nothing in the statute suggests that the immigration
officials would lose their authority to institute the removal
Petitioner appears to assume that his 2008 release date is the
date from which he was “released” from custody, although he was
sentenced to probation for an additional five years following that
date. The Third Circuit has not addressed whether, in such an
instance, the date he would be released from probation should
control. Here, because Petitioner’s claim fails even if the Court
relies on his 2008 release date, for the reasons explained herein,
the Court need not decide which release date should govern the “when
released” analysis.
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proceeding and mandatorily detain the alien, if they delayed. See
Sylvain v. Attorney General of United States, 714 F.3d 150,157 (3d
Cir. 2013). The Court of Appeals, therefore, held that an alien
asserting the type of claim raised here was not entitled to habeas
relief simply because the alien asserted that the immigration
officials delayed taking him/her into custody. See id.
Correspondingly, Petitioner's challenge is without merit.2

Furthermore, this Court notes that if Petitioner is now being
detained after a removal order has been entered, under 8 U.S.C. §
1231(a), the post-removal order statute, the Attorney General has
ninety (90) days after the entry of a removal order to remove
Petitioner. See 8 U.S.C. § 1231(a)(1)(A). The statute then commands
that “[d]uring the removal period, the Attorney General shall detain
the alien.” 8 U.S.C. § 1231(a)(2). With respect to criminal aliens
such as Petitioner, the statute specifically provides that, “[u]nder
no circumstance during the removal period shall the Attorney General
release an alien who has been found ... deportable under section
1227(a)(2) ... of this title.” 8 U.S.C. § 1231(a)(2).
2

At the end of the ninety (90) day period, ICE may continue to
hold the alien, or it may grant supervised release. See 8 U.S.C.
§§ 1231(a)(3) and (6). The discretion to detain an alien under §
1231(a) is limited by the Fifth Amendment's Due Process clause. See
Zadvydas v. Davis, 533 U.S. 678, 693–94 (2001). In Zadvydas, the
United States Supreme Court determined that “[§ 1231(a)(6)], read
in light of the Constitution's demands, limits an alien's
post-removal-period detention to a period reasonably necessary to
bring about that alien's removal from the United States. It does not
permit indefinite detention.” Id. “[F]or the sake of uniform
administration in the federal courts,” the Court recognized six (6)
months as a presumptively reasonable period of detention. Id. at 701.
If at some point in the future Petitioner’s detention becomes
illegal or unconstitutional under the post-removal order statute or
Zadvydas, Petitioner may file another § 2241 petition for relief from
this Court.
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For the foregoing reasons, the Court dismisses Petitioner's
application for habeas relief pursuant to 28 U.S.C. § 2241.
An appropriate Order follows.

/s/Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge
Dated: August 13, 2013

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