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United States District Court, D. New Jersey

August 18, 2005.

ALBERTO GONZALEZ, et al., Respondents.

The opinion of the court was delivered by: KATHARINE HAYDEN, District Judge


Petitioner Antonio S. Rodriguez, an alien confined at Middlesex County Adult Correction Center while awaiting removal, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn1 The respondents are Attorney General Alberto Gonzalez, Andrea J. Quarantillo, Commissioner of the Immigration and Naturalization Service,*fn2 INS District Director John P. Carbone, and Warden Edmond C. Cicchi.


  According to the allegations of the Petition, Petitioner is a citizen of Cuba, who came to the United States in May 1980 in the "Mariel Boatlift." Petitioner was ordered removed on January 26, 1999. Petitioner waived his right to appeal the removal order. Petitioner was taken into INS custody on March 15, 2005.

  Petitioner filed this Petition alleging that his indefinite detention in lieu of removal violates his constitutional and statutory rights.


  United States Code Title 28, Section 2243 provides in relevant part as follows:

A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.
  A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1998); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970). Nevertheless, a federal district court can dismiss a habeas corpus petition if it appears from the face of the petition that the petitioner is not entitled to relief. See Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989). See also 28 U.S.C. §§ 2243, 2255.


  Post-removal-order detention is governed by 8 U.S.C. § 1231(a). 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:
(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)(6) permits continued detention if removal is not effected within 90 days. However, the Supreme Court has held that such post-removal-order detention is subject to a temporal reasonableness standard. Specifically, once a presumptively-reasonable six-month period of post-removal-order detention has passed, a resident alien must be released if he can establish that his removal is not reasonably foreseeable. See Zadvydas v. Davis, 533 U.S. 678 (2001); Clark v. Martinez, 125 S.Ct. 716 (2005).

  Here, Petitioner pleads that he was taken into custody, pursuant to the removal order, on March 15, 2005 and that "the six-month presumptively reasonable removal period for Petitioner ended [sic] on September 15, 2005." (Petition, ¶ 20.) The Petition is dated August 5, 2005, and was received by this Court on August 9, 2005.

  Thus, it is apparent from the face of the Petition that the six-month presumptively reasonable removal period has not yet elapsed and Petitioner is not entitled to the relief requested. IV. CONCLUSION

  For the reasons set forth above, the Petition will be dismissed, without prejudice to Petitioner's bringing a new petition after the presumptively-reasonable period of detention has passed, should circumstances warrant.*fn3 An appropriate order follows.


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