The opinion of the court was delivered by: Hon. Faith S. Hochberg
Kala Singh, a native and citizen of India, 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 as not statutorily authorized and in violation of due process guaranteed by the Fifth Amendment, and he seeks an order directing respondents to release him from custody. Because Petitioner has not alleged facts showing that his removal is statutorily unauthorized or violates his due process rights, this Court will summarily dismiss the Petition, without prejudice to the filing of an amended petition which asserts sufficient facts.
Petitioner challenges his detention by ICE/DHS at the Bergen County
Jail in Hackensack, New Jersey. The 28-page typed Petition consists
primarily of legal arguments and citations to statutes and case law.
The facts concerning Petitioner's removal proceedings and detention
are sparse. Petitioner is a citizen of India. Petitioner asserts that
on September 9, 2009, DHS issued a Notice to Appear for removal
pursuant to Section 212(a)(6)(A)(i), codified at 8 U.S.C. §
1182(a)(6)(A)(i), for entering the United States without being
admitted or paroled. Petitioner states that DHS took him into custody
on that date. Petitioner asserts that "[o]n September 30, 2009,
Petitioner appeared in an Immigration Courtroom at Varick Street, New
York [before] the Honorable Judge Steve Abrams. Petitioner neither had
a private counsel or a legal counsel in his defense present that day.
Immigration Judge Abrams advised the Petitioner that he's not eligible
for relief under 212(c) and was forced to relinquish his rights out."
(Docket Entry #1, p. 3.) Petitioner asserts that on October 19, 2009,
he received a Notice to Alien of File Custody Review which indicated
that officials would consider his release on an order of supervision
on December 10, 2009. (Id.) Petitioner alleges that on November 20,
2009, December 21, 2009, January 3, 2010, March 24, 2010, April 21,
2010, and June 14, 2010, he received notices entitled Warning for
Failure to Depart (Form I-229(a)).*fn1 (Id. at 3, 5.)
Petitioner states that he "is totally fatigued and is asking for
release on Supervision, 9 months with no procedure nor any response
about petitioner deportability by ICE nor the DHS. As of this
Petition, he has been languish[ing] ever since in the custody of
Immigration & Customs Enforcement." (Id. at p. 5.) Petitioner seeks a
Writ of Habeas Corpus "to remedy Petitioner's unlawful detention and
injunctions declaring 8 U.S.C. § 1231, Immigration and Naturalization
Act (INA) 236(c) is unconstitutional on its face." *fn2
(Id. at p. 1.)
"Habeas corpus petitions must meet heightened pleading requirements." McFarland v. Scott, 512 U.S. 849, 856 (1994). Habeas Rule 2(c) requires a § 2254 petition to "specify all the grounds for relief available to the petitioner," "state the facts supporting each ground," "state the relief requested," be printed, typewritten, or legibly handwritten, and be signed under penalty of perjury. 28 U.S.C. § 2254 Rule 2(c), applicable through Rule 1(b).
Habeas Rule 4 requires a judge to sua sponte dismiss a § 2254 petition without ordering a responsive pleading "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." 28 U.S.C. § 2254 Rule 4, applicable through Rule 1(b). Thus, "Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face." McFarland, 512 U.S. at 856. Dismissal without the filing of an answer or the State court record has been found warranted when "it appears on the face of the petition that petitioner is not entitled to relief." Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989); see also McFarland, 512 U.S. at 856; United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (habeas petition may be dismissed where "none of the grounds alleged in the petition would entitle [the petitioner] to relief").*fn3
The Supreme Court explained the pleading requirements under the Habeas Rules as follows:
Under Rule 8(a), applicable to ordinary civil proceedings, a complaint need only provide "fair notice of what the plaintiff's claim is, and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 . . . (1957). Habeas Rule 2(c) is more demanding. It provides that the petition must "specify all the grounds for relief available to the petitioner" and "state the facts supporting each ground." See also Advisory Committee's note on subd. (c) of Habeas Corpus Rule 2, 28 U.S.C., p. 469 ("In the past, petitions have frequently contained mere conclusions of law, unsupported by any facts. [But] it is the relationship of the facts to the claim asserted that is important . . . ."); Advisory Committee's Note on Habeas Corpus Rule 4, 28 U.S.C., p. 471 ("'[N]notice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error." (internal quotation marks omitted)) . . . .
A prime purpose of Rule 2(c)'s demand that habeas petitioners plead with particularity is to assist the district court in determining whether the State should be ordered to "show cause why the writ should not be granted." § 2243. Under Habeas Corpus Rule 4, if "it plainly appears from the petition . . . that the petitioner is not entitled to relief in district court," the court must summarily dismiss the petition without ordering a responsive pleading. If the court orders the State to file an answer, that pleading must "address the allegations in the petition." Rule 5(b).