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Wayne Fisher v. Oscar Aviles

February 23, 2011

WAYNE FISHER, PETITIONER,
v.
OSCAR AVILES, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Hochberg, District Judge

NOT FOR PUBLICATION

: OPINION

APPEARANCES:

Petitioner, Wayne Fisher, is currently being detained by the Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE") at the Hudson County Correctional Center in Kearny, New Jersey, pending his removal from the United States.*fn1

On or about December 13, 2010, Fisher filed this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, in which he challenges his mandatory detention pending removal proceedings as unconstitutional. The petition seeks issuance of an Order to Show Cause, as well as appointment of counsel.

Fisher brings this action against Oscar Aviles, Facility Director at Hudson County Correctional Center; Christopher Shanaham, Acting Field Office Director for Deportation and Removal; John T. Morton, Assistant Secretary of the ICE; Janet Napolitano, Secretary of the DHS and Eric Holder, United States Attorney General, as the named party respondents (hereinafter referred to as "the Government") in this action. (See Petition at Caption, ¶¶ 10-14). For the reasons stated below, this petition for habeas relief is subject to summary dismissal because mandatory detention pending completion of removal proceedings has been held constitutionally permissible. See Demore v. Kim, 538 U.S. 510 (2003).

I. BACKGROUND

Fisher is a native and citizen of Jamaica, who came to United States in 2002. (Petition, ¶ 15). He admits that he is being detained pending conclusion of his removal proceedings pursuant to 8 U.S.C. § 1226(c). Fisher states that he is not contesting his removal, that he has been detained under ICE custody since June 3, 2010, and that he has not had an interim custody review hearing. He also alleges, without any factual support, that the Consulate General of Jamaica will not issue travel documents for Fisher in the reasonable and foreseeable future. (Petition, ¶¶ 1, 2, 9, and 15).

II. DISCUSSION

A. Standard of Review

Fisher seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3).*fn2 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). Under 28 U.S.C. § 2243, "[a] court ... entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto."

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).

B. Jurisdiction to Grant Habeas Relief As stated earlier, Fisher brings this habeas action under 28 U.S.C. § 2241(c)(3), which requires that the petitioner show that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). The Court has subject matter jurisdiction over this petition because Fisher is being detained within its jurisdiction at the time he filed his petition, and because Fisher asserts that his continued detention is not statutorily authorized and is constitutionally impermissible because it violates due process under the Fifth Amendment.

C. Relevant Statutory and Case Law Authority Fisher admits that he is being held pursuant to the mandatory detention statute under 8 U.S.C. § 1226(c), or § 236(c) of the INA. This statute provides for the mandatory detention, without bond while removal proceedings are pending, of those aliens who committed certain enumerated categories of criminal and other offenses.

Specifically, Title 8 of the United States Code, Section 1226 states: § 1226. Apprehension and detention of aliens (a) Arrest, detention, and release. On a warrant issued by the Attorney General, an alien may be ... detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General-

(1) may continue to detain the arrested alien; [or] may release the alien on(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the ...


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