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Mark Sinistovic v. Oscar Aviles

May 10, 2011


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


This matter comes before the Court upon the Petition of Mark Sinistovic ("Petitioner" or "Sinistovic") for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 challenging his continued detention by the United States Immigration and Customs Enforcement ("ICE") as unlawful and unconstitutional under Zadvydas v. Davis, 533 U.S. 687 (2001). Sinistovic is currently in custody at the Hudson County Correctional Facility in Kearny, New Jersey. He filed the instant Petition on December 22, 2010 naming several Respondents, specifically Oscar Aviles, the warden of the facility where Sinistovic is detained; Eric H. Holder, Attorney General of the United States; John Morton, Assistant Secretary of ICE; Janet Napolitano, Secretary of the Department of Homeland Security; Christopher Shanahan, a Field Office Director with the Office of Detention and Removal; and David Venturella, Director of the Office of Detention and Removal. Shortly thereafter, the Court entered an Order directing Respondents to answer the Petition. Respondents opposed Petitioner's application for relief under § 2241 and filed their own motion to dismiss the Petition. The Court has considered the written submissions. For the reasons expressed below, the Court will grant Respondents' motion and dismiss the Petition.


Sinistovic is a native of the country formerly known as Yugoslavia. He entered the United States through John F. Kennedy International Airport on March 17, 1994 without a valid entry document. Following an attempt by Petitioner to secure asylum, and Petitioner's failure to appear at the asylum hearing, an Immigration Judge ordered him removed in absentia to to a country then known as "Serbia-Montenegro" by order of October 23, 1998 (the "Removal Order"). Petitioner did not appeal the Removal Order, and it became final. Several years later, however, he moved to re-open the asylum proceedings, but this attempt was also unsuccessful.

On April 15, 2010, Sinistovic was detained in New York and taken into custody there by ICE pursuant to the Removal Order. Since approximately May 20, 2010, Sinistovic has been detained at his still-current placement in the Hudson County, New Jersey Correction Center.

On April 29, 2010, approximately two weeks after Sinistovic was taken into custody, he filed a second motion to re-open his asylum proceedings before the Immigration Judge. The motion was denied, and Sinistovic appealed that decision to the Board of Immigration Appeals ("BIA"). The BIA denied the appeal. Thereafter, on September 7, 2010, Sinistovic filed an appeal of the BIA's decision with the United States Court of Appeals for the Second Circuit.

That appeal is currently pending. Upon Sinistovic's application, the Second Circuit issued an Order on February 2, 2011 staying his removal pending the appeal.

Upon Sinistovic's detention, ICE pursued the possibility of his removal to various republics of the former Yugoslavia, as the country where Petitioner was ordered removed -"Serbia-Montenegro" - no longer exists. ICE was thereafter able to confirm, through the government of the country now known as Montenegro, that Petitioner was born in Podgorica, Montenegro. Thus ICE requested travel documents for him from the government of Montenegro, a country to which the United States successfully repatriates aliens, according to Respondents' papers. Montenegro denied the request because Sinistovic is not registered in the Book of Montenegrin Citizens and thus was not a officially a citizen of that country. The Montenegrin Consulate further advised, however, that Sinistovic could obtain official citizenship and thus become eligible for the issuance travel documents from Montenegro by making a written request to register in the Book of Citizens. On at least four separate occasions, beginning in September 2010 and according to the record as recently as February 2011, Sinistovic was provided with the paperwork to register as a Montenegrin citizen, but he has consistently refused to comply with the necessary steps for registration, which consist of signing the request, having it notarized and furnishing the completed document to his case officer. In October 2010 and again in January 2011, Field Office Director Shanahan issued Sinistovic notice, as required by law, that Sinistovic's detention would continue based on his failure to cooperate with the efforts to obtain his travel documents for removal to Montenegro.


The Court reviews Respondents' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), which provides for dismissal of a claim for failure to state a claim upon which relief may be granted. In conducting this review, the Court must apply the plausibility standard articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). In Twombly and Iqbal, the Supreme Court stressed that a complaint will survive a motion under Rule 12(b)(6) only if it states "sufficient factual allegations, accepted as true, to 'state a claim for relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556.) The cases are also clear about what will not suffice: "threadbare recitals of the elements of a cause of action," an "unadorned, the-defendant-unlawfully-harmed-me accusation" and conclusory statements "devoid of factual enhancement." Id. at 1949-50; Twombly, 550 U.S. at 555-57. While the complaint need not demonstrate that a defendant is probably liable for the wrongdoing, allegations that give rise to the mere possibility of unlawful conduct will not do. Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 557. In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court may consider the allegations of the complaint, documents attached or specifically referenced in the complaint if the claims are based upon those documents and matters of public record. Winer Family Trust v. Queen, 503 F.3d 319, 327 (3d Cir. 2007).

As an initial matter, the Court addresses a straightforward issue raised by Respondents' motion. They argue that the Petition must be dismissed as to all Respondents other than Aviles for the simple reason that the relief that Petitioner seeks cannot be ordered against any respondent other than "the person who holds him in what is alleged to be unlawful custody." Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95 (1973). Respondents are correct. The only proper respondent in a case challenging physical custody is "the immediate custodian" of the petitioner. Rumsfeld v. Padilla, 542 U.S. 426, 439 (2004). "It is the warden of the prison of the facility where the detainee is held that is considered the custodian for purposes of a habeas actions." Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994). Aviles, who is the warden of the facility where Petitioner is being held, is the only proper respondent to this Petition for a writ of habeas corpus. For this reason alone, the Petition must be dismissed against Respondents Holder, Morton, Napolitano Shanahan and Venturella.

As to Respondent Aviles, the Petition must be dismissed as premature. The statute governing the detention and removal of aliens ordered to be removed, 8 U.S.C. § 1231, requires the detention of the individual to be removed for the duration of the "removal period," defined to generally have an outer limit of 90 days. 8 U.S.C. § 1231(a)(1) and (2). Post-removal-period detention is authorized, 8 U.S.C. § 1231(a)(6), but under the Supreme Court's holding in Zadvydas, cannot continue indefinitely. Zadvydas, 533 U.S. at 689. In Zadvydas, the Supreme Court held that aliens may be detained under § 1231(a)(6) only for "a period reasonably necessary to bring about that alien's removal from the United States." Id. It recognized six months as a presumptively reasonable period of detention. Id. at 701. To state a claim under Zadvydas, the presumptively reasonably six-month period "must have expired at the time [the] petition was filed . . ." Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002).

The removal statute, however, also expressly provides for an extension of the prescribed 90-day removal period for failure by an alien to cooperate in the effort to obtain necessary travel documents. It states in relevant part as follows:

The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure or conspires ...

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