The opinion of the court was delivered by: Cooper, District Judge
Pui Man Li, a citizen of Hong King, China, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging his detention in the custody of Immigration and Customs Enforcement ("ICE") of the Department of Homeland Security ("DHS"). Petitioner challenges his detention at the Monmouth County Correctional Institution as not statutorily authorized and in violation of due process guaranteed by the Fifth Amendment, and seeks an order directing respondents to release him from custody. Because Petitioner has not alleged facts showing that his removal is not reasonably foreseeable, his detention is statutorily authorized by 8 U.S.C. § 1231(a)(6). This Court will summarily dismiss the Petition, without prejudice to the filing of a new petition in a new civil action in the event that Petitioner's removal is not reasonably foreseeable.
Petitioner entered the United States on January 4, 1991, and asserts that he served a three-year prison term for selling illegal drugs. Petitioner alleges that DHS took him into custody on January 5, 2010, when he was released from prison. Petitioner asserts that he has "cooperated fully with all efforts by ICE to remove him from the U.S.A. [and, a]lthough he has signed for his removal back to China and he is still being detained, it's been over seven months that he has signed his documents to go back to China." (Docket Entry #1, p. 3.) Petitioner contends that he "has already been detained in excess of six months and Petitioner's removal is not significantly likely to occur in the reasonably foreseeable future," but he provides no factual support for this conclusion. (Id. at p. 4.) He argues that his continued detention is not statutorily authorized and violates procedural and substantive due process. (Id. at pp. 3-5.) He seeks a writ of habeas corpus "directing the Respondents to immediately release Petitioner from custody." (Id., p. 5.)
Under 28 U.S.C. § 2241(c), habeas jurisdiction "shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2241(c)(3). A federal court has subject matter jurisdiction under 2241(c)(3) if two requirements are satisfied:
(1) the petitioner is "in custody," and (2) the custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989); 1 James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice & Procedure § 8.1 (4th ed. 2001). This Court has subject matter jurisdiction over the Petition under § 2241 because Petitioner was detained within its jurisdiction in the custody of the DHS at the time he filed his Petition, see Spencer v. Kemna, 523 U.S. 1, 7 (1998), and he asserts that his detention is not statutorily authorized and violates his constitutional rights. See Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d Cir. 2005).
Habeas Rule 4 requires a district court to examine a habeas petition before ordering an answer and to dismiss the petition if the petitioner is not entitled to relief. See 28 U.S.C. § 2254 Rule 4, applicable through Rule 1(b). Habeas Rule 4 provides in relevant part:
The clerk must promptly forward the petition to a judge . . . and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.
28 U.S.C. § 2254 Rule 4, applicable through Rule 1(b). "Federal courts are authorized to dismiss summarily any habeas petition that ...