The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge
Petitioner, Nolan Roberts ("Roberts"), is currently being
detained by the Department of Homeland Security ("DHS"), Bureau
of Immigration and Customs Enforcement ("BICE") at the Hudson
County Correctional Facility in Kearny, New Jersey, pending his
removal from the United States.*fn1 On or about July 7,
2005, Roberts filed a Petition for Writ of Habeas Corpus under
28 U.S.C. § 2241, in which he challenges his final order of removal
from the United States and his continued detention pending
removal as unconstitutional. On August 11, 2005, the claims
challenging the removal order were severed from this action and
transferred to the United States Court of Appeals for the Third
Circuit, pursuant to Section 106(a)(5) of the REAL ID Act of
2005. The respondents were directed to answer the remaining claim
in this petition challenging Roberts' detention.
On August 29, 2005, the U.S. Attorney's Office responded by
letter with attachments, and contend that the petition should be
dismissed because Roberts has not yet exhausted his
administrative remedies and therefore, his continued detention
during the pendency of removal proceedings is constitutional.
Demore v. Kim, 538 U.S. 510 (2003).
Roberts is a native and citizen of Guyana who was admitted into
the United States as lawful permanent resident on September 6,
1988. He was convicted in a New York state court, on or about
December 2, 1996, on charges of attempted criminal sale of cocaine. On March 16, 2004, the DHS/BICE issued a Notice to
Appear for removal proceedings. The Notice stated that Roberts
was subject to removal pursuant to Section 237(a)(2)(B)(i) of the
Immigration and Nationality Act ("INA") based on his conviction
of a violation relating to a controlled substance, and pursuant
to Section 237(a)(2)(A)(iii) of the INA because he was convicted
of an aggravated felony relating to a drug trafficking crime. On
March 29, 2005, additional charges of deportability were lodged
against Roberts, pursuant to Section 237(a)(2)(A)(ii), for his
two convictions of crimes involving moral turpitude not arising
out of a single scheme of criminal conduct.
On June 3, 2005, an Immigration Judge ordered that Roberts be
removed from the United States to Guyana, based on all charges.
Roberts appealed the removal order to the Board of Immigration
Appeals ("BIA") on or about June 24, 2005. The BIA appeal is
currently pending. Roberts is detained in the custody of the
DHS/BICE pending his BIA appeal.
Roberts seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2241(c)(3). That section states that the writ will not be
extended to a prisoner unless "he is in custody in violation of
the Constitution or laws or treaties of the United States."
28 U.S.C. § 2241(c)(3). Here, petitioner challenges his continued detention. The petition does not indicate the date he was taken
into immigration custody. Roberts claims that his detention is
unlawful because it violates his rights to due process and equal
A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers. See 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. 1989);
United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912 (1970).
Respondents contend that the petition should be dismissed
because Roberts has failed to exhaust his administrative
remedies, and because his detention is lawful and constitutional
under Demore v. Kim, 538 U.S. 510 (2003).
B. Roberts Is Not Entitled to Release from Detention
Roberts was initially detained in BICE custody subject to
ongoing removal proceedings. It appears that his detention
continues based on a June 2005 removal order that is not yet
final pending appeal before the BIA, filed on June 24, 2005. The
respondents state that Roberts is detained under a different
provision of the INA, not 8 U.S.C. § 1226(c), but nevertheless, the United States Supreme Court's holding in Demore v. Kim,
538 U.S. 510 (2003) forecloses Roberts' constitutional challenge to
his continued detention.*fn2
The custodial status of aliens who have committed crimes is
governed by 8 U.S.C. § 1226 (INA § 236). Section 1226(a) gives
the Attorney General discretion to arrest and detain an alien
pending removal proceedings and to release the alien on bond.
Section 1226(b) gives the Attorney General discretion to revoke a
bond or parole under § 1226(a). By contrast, however, § 1226(c)
requires that aliens with certain enumerated criminal convictions
be detained pending removal proceedings. In particular, § 1226(c)
provides for the detention of criminal aliens who are ...