Faustov v. Napolitano

Filing 13

MEMORANDUM (Attachments: # 1 R&R)(eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
YURIY FAUSTOV,

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Petitioner,
v.
JANET NAPOLITANO, et al.,
Respondents.

1:13-cv-1018

Hon. John E. Jones III
Hon. Martin C. Carlson

MEMORANDUM
July 10, 2013
This matter is before the Court on the Report and Recommendation
(“R&R”) of Chief Magistrate Judge Martin C. Carlson (Doc. 11), filed on June 17,
2013, which recommends that we deny pro se Petitioner Yuriy Faustov’s
(“Petitioner”) 28 U.S.C. § 2241 habeas corpus petition without prejudice to
renewal of the petition at such time, if any, that his delay and detention in the
United States may become unreasonable and excessive. Objections to the R&R
were due by July 5, 2013, and to date none have been filed. Accordingly, this
matter is ripe for our review. For the reasons set forth below, the Court will adopt
the Magistrate Judge’s R&R in its entirety.

I.

STANDARD OF REVIEW
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When, as here, no objections are made to a magistrate judge’s report and
recommendation, the district court is not statutorily required to review the report
before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). According to the
Third Circuit, however, “the better practice is to afford some level of review to
dispositive legal issues raised by the report.” Henderson v. Carlson, 812 F.2d 874,
878 (3d Cir. 1987). “[T]he court need only satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation.” Fed. R. Civ. P.
72(b), advisory committee notes; see also Henderson, 812 F.2d at 878-79 (stating
“the failure of a party to object to a magistrate's legal conclusions may result in the
loss of the right to de novo review in the district court”); Tice v. Wilson, 425 F.
Supp. 2d 676, 680 (W.D. Pa. 2006); Cruz v. Chater, 990 F. Supp. 375-78 (M.D.
Pa. 1998); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998). The Court’s
examination of this case confirms the Magistrate Judge’s determinations.
II.

DISCUSSION
Petitioner, a native of the Ukraine, became subject to a final order of

removal from the United States on February 28, 2013. Thus, as an alien subject to
removal, Petitioner was detained under 8 U.S.C. § 1231(a), which directs the
Attorney General to remove such aliens within 90 days of the entry of a final
removal order. 8 U.S.C. § 1231(a)(1)(A). As correctly noted by the Magistrate
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Judge, the contours of the rights of aliens awaiting removal are defined by the
United States Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678
(2001). Pursuant to Zadvydas, a six month period of detention of aliens subject to
removal following the initial 90 day removal period is considered presumptively
reasonable.
As of the filing of the R&R , which was less than a month ago, the Petitioner
had been in custody for the 90 day removal period plus twenty additional days. As
of the writing of this Memorandum, the Petitioner has obviously been in preremoval custody far less than the presumptively reasonable 6 month period
permitted by Zadvydas. Thus, the Magistrate Judge recommends that Petitioner
has not made a valid claim that he has been subjected to an unconstitutionally
excessive period of post-removal delay, and recommends denial of the habeas
corpus petition with leave to file a renewed petition if Petitioner’s detention
exceeds the period for presumptive reasonableness. We agree. We further note
that the Petitioner has been issued a travel document to return to the Ukraine, thus
his removal appears to be imminent.
As we have already mentioned, the Petitioner has not filed objections to this
R&R. Because we agree with the sound reasoning that led the Magistrate Judge to
the conclusions in the R&R, we will adopt the R&R in its entirety. With a mind
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towards conserving judicial resources, we will not rehash the reasoning of the
Magistrate Judge; rather, we will attach a copy of the R&R to this document, as it
accurately reflects our consideration and resolution of the case sub judice.

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