COLE v. ELWOOD et al
Filing
10
OPINION filed. Signed by Judge Peter G. Sheridan on 5/12/2013. (eaj)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAVE MICHAEL COLE,
Civil Action No.
13-1538
(PGS)
Petitioner,
OPINION
v.
BRIAN ELWOOD,
et al.,
Respondents.
APPEARANCES:
DAVE MICHAEL COLE, Petitioner Pro Se
A #205 309 260
Hudson County Correctional Center
30-35 Hackensack Avenue
07032
Kearny, New Jersey
DANIEL SHAY KIRSCHBAU, AUSA
OFFICE OF THE U.S. ATTORNEY
970 Broad Street, Suite 700
Newark, New Jersey 07102
Counsel for Respondents
SHERIDAN,
District Judge
Petitioner Dave Michael Cole
(“Petitioner”),
an immigration
detainee presently confined at the Hudson County Correctional
Center in Kearny,
New Jersey,
has submitted a petition for a
writ of habeas corpus pursuant to 28 U.S.C.
§ 2241,
his continuing detention without a bond hearing.
proper respondent is Oscar Aviles,
challenging
The sole
Warden at Hudson County
Correctional Center, where Petitioner is in custody.’
appears from a review of the parties’
Because it
submissions that
Petitioner is not entitled to the relief he seeks at this time,
the Court will deny the petition without prejudice.
I.
BACKGROUND
Petitioner Dave Michael Cole is a native and citizen of
Jamaica, who entered the United States unlawfully on or about
November 14,
1992.
(Petition,
Exhibit B.)
On or about June 28,
¶[ 14,
15;
2002,
Respondent’s Answer,
Petitioner was convicted
of Conspiracy to Distribute and Possess with Intent to
Distribute 100 kilograms and more of marijuana,
21 U.S.C.
§ 846,
in the United States District Court for the
Southern District of New York,
(WHP)
.
in violation of
(Petition,
¶ 16.)
under Case No.
l:00CR00591-03
The Government states that Petitioner
On March 27,. 2013, Petitioner was transferred from Monmouth
County Correctional Institution to the Hudson County facility.
Accordingly, Warden Brian Elwood of Monmouth County Correctional
Institution is no longer custodian of Petitioner.
The correct
respondent is now Oscar Aviles, Warden at Hudson County
Correctional Center, where Petitioner is confined.
Petitioner also has named various remote federal officials as
respondents.
However, the only proper respondent to a habeas
petition challenging current confinement is the warden of the
facility where the prisoner is being held.
Accordingly, Warden
Aviles is the only properly named respondent in this action, and
the other named respondents shall be dismissed from this action
with prejudice.
See Rumsfeld v. Padilla, 542 U.S. 426 (2004);
Yi V. Maugans, 24 F.3d 500 (3d Cir. 1994)
2
also was convicted (1)
17,
1995,
in the New York Supreme Court,
on April
(2)
of criminal possession of a loaded firearm;
California Superior Court,
Los Angeles County,
in the
on charges of
selling/furnishing marijuana,
and sentenced to a 364-day prison
term on or about February 26,
1998; and (3)
in the United States
District Court for the Southern District of New York,
of misuse
of a social security number in violation of 42 U.S.C.
§
408 (a) (7) (B),
and sentenced to a term of 50 consecutive weekends
in prison on October 13,
2010.
(Respondent’s Answer,
¶ 16.)
The United States District Court for the Southern District of
New York later determined that Petitioner had violated the terms
of his probation
(on the October 13,
2010 conviction),
and
Petitioner was sentenced to three months imprisonment on October
2,
2012.
Id.
On or about November 21,
2012,
Petitioner was taken into
custody by the U.S. Department of Homeland Security (“USDHS”),
Immigration and Customs Enforcement
(“ICE”),
and detained
pursuant to the Immigration and Nationality Act “(INA”)
236(c),
8 U.S.C.
to Appear
§ 1226(c).
(“NTA”),
Section
Petitioner was served with a Notice
charging him with inadmissibility under INA
Section 212 (a) (6) (A) (i) (alien present without admission or
parole),
Section 212 (a) (2) (A) (i) (II) (controlled substance
3
violation),
and Section 212(a) (2) (C) (reason to believe alien is
a drug trafficker).
Declaration of Patrick Heerey at ¶
(Id.,
On or about November 28,
10.)
removal proceedings.
(Id.,
2012,
Petitioner was placed in
Heerey Deci.,
¶ 11.)
Petitioner
appeared before the Immigration Judge on December 12,
January 14,
2013,
Heerey Deci.,
February 13,
¶91 12-15.)
2013,
and March 19,
At the March 19,
2012,
2013.
(Id.,
2013 hearing,
Petitioner admitted the allegations in the NTA,
and the
Immigration Judge ordered Petitioner’s removal to Jamaica.
Petitioner waived his right to file an appeal from the removal
order with the Board of Immigration Appeals
Heerey Deci.,
(“BIA”).
(Id.,
¶ 15.)
On March 27,
2013,
Petitioner was transferred from the
Monmouth County Correction Institution to the Hudson County
Correctional Center for detention pending his removal from the
United States.
On April 3,
2013,
the Jamaican Consulate
interviewed Petitioner for the purpose of issuing a travel
document for Petitioner’s removal.
As of April 22,
2013,
Petitioner has not filed an appeal with the BIA or a motion with
the Immigration Judge regarding his removal order.
Decl.,
¶91 17-19.)
4
(Id.,
Heerey
Petitioner filed this habeas petition on or about March 13,
2013.
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.,
¶ 27.)
Petitioner also
argues that his mandatory detention under § 1226(c)
is not
authorized because he has a substantial challenge to his
removal.
(Pet.,
¶[ 30,
On April 23,
2013,
31.)
the Government filed an answer to the
petition, with the relevant administrative record,
arguing that
the petition should be denied because Petitioner’s detention is
covered by 8 U.S.C.
not § 1226(c),
§ 1231(a)
(post-removal order detention)
and
as Petitioner has been ordered removed and has
not appealed that order.
Docket entry no.
8.)
(Resp. Answer,
¶9 25,
29, pp.
8-11,
The Government also argues that
Petitioner’s claim alleging that his mandatory detention under §
1226(c) was not authorized because he was not taken into ICE
custody “when released” from criminal custody related to his
removable offense,
is substantially meritless and now foreclosed
by the United States Court of Appeals for the Third Circuit’s
recent precedential decision in Sylvain v. Attorney General of
the United States,
et al.,
No.
11-3357,
5
F.3d
,
2013 WL
(3d Cir., April 22,
1715304
2013), which holds that immigration
authorities do not lose their authority to impose mandatory
detention even if they fail to act when the alien is initially
released from state or federal custody.
11-12,
Docket entry no.
(Resp. Answer at pp.
8.)
II. RELEVANT STATUTES
Federal law sets forth the authority of the Attorney
General to detain aliens in removal proceedings.
Title 8 U.S.C.
§ 1226(a) provides the Attorney General with the authority to
arrest,
detain,
and release an alien during the pre-removal
order period when the decision as to whether the alien will be
removed from the United States is pending.
The statute
provides,
(a)
Arrest,
detention,
and release
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. Except as
provided in subsection (c) of this section and pending such
decision, the Attorney General—
(1)
(2)
may continue to detain the arrested alien; and
may release the alien on—
(A) bond of at least $1,500 with security
approved by, and containing conditions prescribed
by, the Attorney General; or
(B) conditional parole; but
(3) may not provide the alien with work authorization
(including an “employment authorized” endorsement or
other appropriate work permit), unless the alien is
lawfully admitted for permanent residence or otherwise
6
would (without regard to removal proceedings) be
provided such authorization.
(b)
Revocation of bond or parole
The Attorney General at any time may revoke a bond or
parole authorized under subsection (a) of this section,
rearrest the alien under the original warrant, and detain
the alien.
8 U.S.C.
§ 1226(a) (emphasis added.)
certain criminal aliens,
however,
are subject to mandatory
detention pending the outcome of removal proceedings, pursuant
to 8 U.S.C.
§ 1226(c) (1), which provides in relevant part that:
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any
offense covered in section 1182 (a) (2) of this title,
(B) is deportable by reason of having committed any offense
covered in Section 1227 (a) (2) (A) (ii) , (A) (iii), (B) , (C)
or (D) of this title,
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) (emphasis added).
Section 1226(c) (2)
permits release of criminal aliens only under very limited
circumstances not relevant here.
In short,
detention under § 1226(a)
is discretionary and
permits release on bond, while detention under § 1226(c)
mandatory.
7
is
Title 8 u.S.C.
detentions.
§ 1231(a) governs “post-removal-order”
Section 1231 (a) (1)
requires the Attorney General to
attempt to effectuate removal within a 90—day “removal period.”
The removal period begins on the latest of the following:
Ci) 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) (6) permits continued
detention if removal is not effected within 90 days.
Removal can be delayed by,
e.g.,
the need to make
arrangements with the destination country.
In addition,
the
removal period can be restarted multiple times by various
superseding events,
criminal charges.
Feb. 9,
2012).
such as a new stay order or a detention on
See Sayed v. Holder,
2012 WL 458424
(D.N.J.
The U.S. Supreme court has adopted a rule of
thumb that a post-removal detention of up to six months is
reasonable, but that a bond hearing may be required after that
time.
Zadvydas v. Davis,
533 U.S.
8
678
(2001).
III. ANALYSIS
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)
satisfied:
(1)
if two requirements are
the petitioner is “in custody,” and (2)
the
custody is “in violation of the Constitution or laws or treaties
of the United States.”
v.
Cook,
490 U.S.
488,
28 U.S.C.
490
(1989)
§ 2241(c) (3);
.
see also Maleng
Accordingly,
this Court has
subject matter jurisdiction over the Petition under § 2241
because petitioner was detained within its jurisdiction in the
custody of ICE at the time he filed his petition,
Kemna,
523 U.S.
1,
7
(1998),
see Spencer v.
and because he asserts that his
mandatory detention is not statutorily authorized by 8 U.S.C.
1226(c)
and therefore violates his due process rights,
Zadvydas,
445—46
533 U.S.
(3d Cir.
at 699; Bonhometre v.
2005)
9
Gonzales,
§
see
414 F.3d 442,
B.
Statutory Authority for Petitioner’s Detention
Petitioner argues that he should not be subject to
because the ICE did
mandatory detention under Section 1226(c)
not immediately place him into custody when he was released from
prison on the allegedly removable offense more almost four years
ago.
Under 8 U.S.C.
§ 1226 (c) (1) (B),
take into custody “any alien who
...
the Attorney General shall
(B)
is deportable by reason
of having committed any offense covered in Section
1227(a) (2) (A) (ii),
(A)
(B),
(iii),
(C),
or
(D)
of this title,
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.”
1226(c) (1) (B) (emphasis added).
8 U.S.C.
§
Petitioner contends that an
“overwhelming majority of federal district courts” have
interpreted the term “when
...
released” under Section 1226(c)
to mean that ICE is required to immediately detain an alien upon
release from criminal incarceration.
Holder,
2011 WL 4829391 at *6_7
Specifically,
See,
e.g.,
(D.N.J. Oct.
in addition to Parfait,
11,
Parfait v.
2011)
Petitioner cites to other
cases in this District that have held that the mandatory
detention statute of § 1226(c)
does not control if the ICE
10
delayed in taking an alien into custody after the alien was
See Beckford v. Aviles,
released from criminal custody.
3515933
(D.N.J. Aug.
9,
2580506
2011);
(D.N.J. June 28,
and Sylvain v. Holder,
(Petition,
2011).
¶ 27.)
2011 WL
2011 WL
Petitioner
also refers to numerous other federal district courts outside of
the District of New Jersey that have held the same view as to
(Petition,
this issue of mandatory detention.
However,
as the Government points out in its answer to the
petition regarding this claim,
Circuit resolved this issue,
WL 2580506
¶ 27.)
on April 22,
the Third
reversing Sylvain v. Holder,
2011)
(D.N.J. June 28,
2013,
on appeal,
2011
and holding that
the ICE does not lose its authority to impose mandatory
detention under 8 U.S.C.
§ 1226(c),
even if the Government has
delayed in detaining the alien when the alien was released from
state or federal custody.
—
F.3d
—,
Sylvain v. Attorney General of U.S.,
2013 WL 1715304,
*9
*5,
(3d Cir. April 22,
2013)
The Third Circuit concluded:
Our holding rests on a simple observation: even if the
statute calls for detention “when the alien is released,”
and even if “when” implies some period of less than four
years, nothing in the statute suggests that officials lose
With this holding, we neither
authority if they delay.
condone government indolence nor express approval for the
But as the Supreme Court has explained
delay in this case.
in a related context, “[t]he end of exacting compliance
with the letter of [the statute] cannot justify the means
of exposing the public to an increased likelihood of
11
violent crime by persons on bail, an evil the statute aims
to prevent.”
Montalvo-Murillo, 495 U.s. at 720.
Accordingly, we will reverse the District Court’s judgment.
Id.,
2013 WL 1715304 at *9
The Third Circuit’s mandate in Sylvain definitively bars
Petitioner’s claim for habeas relief, which is based on the
identical argument rejected in Sylvain,
and thus makes
Petitioner ineligible for a bond hearing under § 1226 (a).
Moreover,
as Petitioner only recently was taken into ICE
custody on November 21,
2012,
Petitioner cannot assert a claim
of unreasonably prolonged detention in violation of the Due
Process Clause under Diop v.
Cir.
ICE/Homeland Sec.,
656 F.3d 221
(3d
2011) (finding that Diop’s nearly three year detention was
unconstitutionally unreasonable and,
due process).
In Diop,
therefore,
a violation of
the Third Circuit concluded that the
mandatory detention statute,
§ 1226(c),
implicitly authorizes
detention for 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.
at 231.
In this case,
than six months,
656 F.3d
Petitioner’s mandatory detention is less
and he alleges no facts to show that his
12
continued detention,
his removal,
now that an Immigration Judge has ordered
is or will become unreasonably prolonged or
indefinite.
Nor does Petitioner allege any factual basis for his claim
that his mandatory detention is not authorized under §1226(c)
because of a substantial challenge to removal.
He simply
asserts without elaboration that he “is eligible for asylum,
withholding,
Finally,
and convention against torture.”
(Petition,
¶ 31.)
the Government contends that Petitioner’s
detention is no longer governed by 8 U.S.C.
now authorized by 8 U.S.C.
§ 1226(c),
but is
§ 1231(a), because Petitioner is
subject to a final order of removal.
The Immigration Judge
issued an order of removal on March 19,
not filed an appeal before the BIA,
2013,
and Petitioner has
nor has he filed a petition
for review or sought a stay of his removal.
As discussed previously,
§ 1231(a)
directs the Attorney
General to remove aliens within ninety (90)
a removal order.
8 u.s.c.
§ 1231 (a) (1) (A).
commands that “[d]uring the removal period,
shall detain the alien”,
8 u.s.c.
to criminal recidivist aliens,
days of the entry of
The statute then
the Attorney General
§ 1231(a) (2),
and with respect
specifically provides that,
“[u]nder no circumstance during the removal period shall the
13
Attorney General release an alien who has been found
deportable under section 1227(a)
U.S.C.
(2)
8
of this title.”
§ 1231(a) (2).
At the end of the ninety (90)
to hold the alien,
§ 1231(a) (3)
day period,
ICE may continue
or it may grant supervised release.
and (6).
8 U.s.c.
The discretion to detain an alien under
is limited by the Fifth Amendment’s Due Process
§ 1231(a)
clause.
...
See Zadvydas,
533 U.S.
at 693-94.
In Zadvydas,
United States Supreme court interpreted § 1231(a) (6)
“an implicit limitation” on detention.
determined that “[s 1231(a) (6)],
constitution’s demands,
Id.
at 689.
the
to include
The court
read in light of the
limits an alien’s post-removal-period
detention to a period reasonably necessary to bring about that
alien’s removal from the United States.
indefinite detention.”
Id.
It does not permit
“[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.
Thus,
the Government may not detain indefinitely an alien
ordered removed, but may detain such an alien only for a period
reasonably necessary to secure his removal.
More specifically,
once a presumptively-reasonable six-month period of post
14
removal-order detention has passed,
a detained alien must be
released if he can establish that his removal is not reasonably
foreseeable.
The alien bears the initial burden of establishing
that there is “good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable
future,” after which the government must come forward with
Zadvydas,
evidence to rebut that showing.
In
533 U.S. at 701.
assessing whether an alien has made the required showing,
it
must be remembered that, while the Supreme Court in Zadvydas
emphasized that the expiration of the six month presumptivelyreasonable period of detention did not mandate release,
it also
stated that as the period of detention grows “what counts as the
‘reasonably foreseeable future’
at 701
conversely shrinks.”
533 U.S.
(citation omitted)
As set forth above,
of the following:
(i)
administratively final
taken and ruled upon,
the removal period starts on the latest
the date when the order of removal becomes
(that is,
appeal to the BIA was either
or the time to appeal expired);
the removal order is judicially reviewed and,
circuit court orders a stay of the removal,
or
(ii)
in addition,
if a
then it is the date
of the court’s final order as to that removal,
or
(iii)
if the
alien is detained or confined (except under an imigration
15
if
process),
then it is the date when the alien is released from
confinement.
See 8 U.S.C.
In the instant case,
(iii)
§ 1231 (a) (1) (B) (i)
through
(iii)
•2
the Government argues that subsection
obviously does not apply to Petitioner because he is
presently detained for immigration purposes.
Subsection
(ii)
also does not apply because Petitioner has not filed a petition
for review and no stay of removal has ever been granted.
in absence of a stay of removal,
Petitioner,
subsection
(i)
Thus,
applies to
and his removal period began on the date his order
of removal became administratively final.
Here,
an order of removal was issued by the Immigration
Judge on March 19,
2013,
and the parties have confirmed that
Petitioner has not appealed the March 19,
2013 order to the BIA.
In the absence of an administrative appeal,
Petitioner’s order
of removal became final on April 19,
2013, when the time for
3
seeking review by the BIA expired.
See 8 C.F.R.
2
§ 1240.15
(an
However, the “removal period” begins anew upon each subsequent
occurrence of one of the designated events set forth in §
See Michel v. Immigration and
1231(1) (a) (B) above.
Naturalization Service, 119 F. Supp.2d 485 (M.D.Pa. 2000);
See
Yaguachi v. Clancy, 2012 WL 1495540 (D.N.J. April 27, 2012.
also Pierre v. McKusey, 2009 WL 464444, at *2 (D.N.J. Feb.24,
2009) (an appeal challenging an order of removal restarts the
Removal Period.)
An order of removal becomes “final upon the earlier of-(i) a
determination by the Board of Immigration Appeals affirming such
16
appeal from a decision of an immigration judge to the BIA “shall
be filed within 30 calendar days after the mailing of a written
decision,
the stating of an oral decision,
summary decision”).
or the service of a
Since the removal period begins on the
“date the order of removal becomes administratively final,” 8
U.S.C.
§ 1231(a) (l)(B)(i),
April 19,
2013,
Accordingly,
Petitioner’s removal period began on
when the time to appeal to the BIA expired.
the 90-day removal period only recently started and
will not expire until July 19,
2013,
and the six-month
presumptively reasonable period of post-removal-period detention
under Zadvydas will not expire until October 19,
2013.
For Petitioner to state a claim under Zadvydas,
the six-
month presumptively-reasonable removal period must have expired
at the time the Petition is filed;
a prematurely-filed petition
must be dismissed without prejudice to the filing of a new
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. Appx. 610, 611 n. 1 (3d Cir. 2009);
Davies v. Hendricks, 2013 WL 1704867, *4, fn.1 (D.N.J. April 19,
2013)
17
Petition once the removal period has expired.
v. Mukasey,
340 Fed. Appx.
at *3
2012 WL 3615464,
2012 WL 1065877
761
(3d Cir.
(M.]D.Pa. Aug.
(3d Cir. March 30,
submitted his Petition on March 13,
period began on or about April 19,
e.g.,
2009); Hall v.
21,
2012)
See,
2012);
2013,
2013.
Sabol,
Ufele v. Holder,
Here,
.
Rodney
Petitioner
before his removal
Thus,
any potential
Zadvydas claim was not ripe at the time Petitioner initiated
this action.
Moreover,
as observed above,
the six-month
presumptively-reasonable removal period does not expire until
October 19,
2013.
Accordingly,
the Petition must be dismissed
without prejudice as premature, because
(1)
the presumptively
reasonable six month period for removal has yet to expire,
and
(2)
‘no
Petitioner “has made no showing whatever that there is
significant likelihood of removal in the reasonably foreseeable
future.’”
Encarnacion—Mendez v. Attorney General of U.S.,
Fed. Appx.
251,
*4
254
(3d Cir.2006); Davies,
176
2013 WL 1704867 at
This dismissal is without prejudice to the filing of a new
§ 2241 petition
(in a new case)
after October 19,
2013,
in the
event that Petitioner can allege facts showing good reason to
believe that there is no significant likelihood of his removal
in the reasonably foreseeable future.
18
IV.
CONCLUSION
For the foregoing reasons,
the Court dismisses without
prejudice Petitioner’s application for habeas relief pursuant to
28 U.S.C.
Dated:
§ 2241.
(
An appropriate Order follows.
PETER G. SHERIDAN
United States District Judge
f
19
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