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HARVEY v. HOMELAND SECURITY

United States District Court, D. New Jersey


August 18, 2005.

MARK HARVEY, Petitioner,
v.
HOMELAND SECURITY, et al., Respondents.

The opinion of the court was delivered by: ANNE THOMPSON, Senior District Judge

OPINION

Petitioner Mark Harvey, an alien currently detained pending removal at the Monmouth County Correctional Institution, Freehold, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn1 Respondents are Homeland Security and Warden Fasser. For the following reasons, the Petition will be denied.

  BACKGROUND

  Petitioner is a native of Jamaica, who entered the United States in 1984 as a lawful permanent resident. In April 1994, Petitioner plead guilty to attempted rape in the second degree, in violation of New York state law. Petitioner was sentenced to five years probation.

  On September 3, 1999, the Immigration and Naturalization Service ("INS") charged Petitioner as removable as an aggravated felon pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). The criminal conviction constituted an aggravated felony under 8 U.S.C. §§ 1101(a)(43)(A), 1101(a)(43)(U). On January 17, 2002, a hearing was held before an Immigration Judge, and Petitioner was found removable. On August 28, 2003, the Board of Immigration Appeals affirmed the removal order. On September 22, 2003, Petitioner appealed the BIA affirmation to the Court of Appeals for the Second Circuit.

  On February 9, 2004, the Bureau of Immigration Customs and Enforcement (BICE) presented information to the Jamaican Embassy to acquire travel documents for Petitioner. Petitioner, through counsel, filed a motion and was granted a Stay of Removal in the Second Circuit on February 19, 2004. In the meantime, the BICE was informed by the Jamaican Embassy on February 27, 2004 that they were "ready and willing" to issue travel documents for Petitioner's removal.

  On January 6, 2005, the BICE conducted a custody review and decided to continue his detention for the duration of the appeal pending in the Second Circuit. Respondents inform the Court in their Answer that the appeal is still pending.

  On January 19, 2005, Petitioner submitted the instant Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241, arguing that his indefinite detention is unconstitutional.

  ANALYSIS

  As an alien alleged to be removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), Petitioner's pre-removal order custody is mandatory under 8 U.S.C. § 1226(c)(1)(B).*fn2 The Supreme Court has upheld mandatory pre-removal-order detention of specified certain criminal aliens under 8 U.S.C. § 1226(c). See Demore v. Kim, 538 U.S. 510, 516-17 (2003). In so doing, the Court relied upon more than a century of precedent "recogniz[ing] detention during deportation proceedings as a constitutionally valid aspect of the deportation process." 538 U.S. at 523 (citations omitted). The Court also emphasized that pre-removal-order detention typically lasts only a few months and has a finite ending point at the completion of the removal proceedings. Id. at 526-531. In this case, Petitioner has been granted a stay of removal, and therefore, prolongs his detention. Thus, there is no constitutional deprivation in Petitioner's pre-removal-order detention.

  CONCLUSION

  For the reasons set forth above, the Petition must be denied without prejudice. An appropriate order follows.

20050818

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