United States District Court, D. New Jersey
August 18, 2005.
ANTONIO S. RODRIGUEZ, Petitioner,
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
II. STANDARDS FOR A SUA SPONTE DISMISSAL
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
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
(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
(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
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