United States District Court, D. New Jersey
August 18, 2005.
MARK HARVEY, Petitioner,
HOMELAND SECURITY, et al., Respondents.
The opinion of the court was delivered by: ANNE THOMPSON, Senior District Judge
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.
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
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
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.
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
For the reasons set forth above, the Petition must be denied
without prejudice. An appropriate order follows.
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