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Rood Resil v. Roy L. Hendricks

June 21, 2011


The opinion of the court was delivered by: Jose L. Linares United States District Judge



Petitioner, Rood Resil, is currently being detained by the Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE") at the Essex County Correctional Facility in Newark, New Jersey, pending his removal from the United States.*fn1

On or about April 8, 2011, Resil filed this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, in which he challenges his continued detention pending removal as unconstitutional. The petition seeks issuance of an Order to Show Cause. Resil brings this action against Roy L. Hendricks, Warden at the Essex County Correctional Facility where petitioner is presently detained; and the ICE in general, as the named party respondents (hereinafter referred to as "the Government") in this action. (See Petition at Caption, ¶ 5).

The Government provided a response to the petition on or about May 19, 2011, together with the relevant record. (Docket entry no. 5). Resil filed a reply letter on or about May 25, 2011. (Docket entry no. 6). For the reasons stated below, this petition for habeas relief will be denied because petitioner has not demonstrated that his removal is not reasonably foreseeable or that his continued detention is constitutionally impermissible.


Resil states that he is a native and citizen of Haiti, who was admitted into the United States as a lawful permanent resident on or about September 6, 1989. (Petition, ¶¶ 1, 11).

The Government records confirm that Resil is a native and citizen of Haiti, who adjusted to lawful permanent resident alien status earlier on November 25, 1987. (Respondents Exhibit 2, Written Decision of Immigration Judge in In the Matter of Rood Resil, Case No. A042-146-903, dated October 23, 2008). On April 30, 2008, Resil was convicted in the United States District Court for the Southern District of Texas for transporting undocumented aliens within the United States by means of a private motor vehicle for private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(B)(I) and 18 U.S.C. § 2. He was sentenced to fifteen years in prison with three years of supervised release. (Id.; see also Respondents' Ex. 3, Judgment in Criminal Case, United States v. Resil, Case No. 07-cr-01118-001 (S.D. Tex. May 1, 2008); and Petition at ¶ 12).

On August 20, 2008, while Resil was serving his sentence for the above-mentioned conviction, the DHS issued a Notice to Appear and Order to Show Cause against Resil, charging that he was removable under the Immigration and Nationality Act ("INA") § 237(a)(1)(E)(iii), 8 U.S.C. § 1227(a)(1)(E)(iii), for having been convicted of alien smuggling, and placed him in removal proceedings. (Resp. Ex. 4; Petition at ¶ 13). On October 23, 2008, an Immigration Judge found Resil deportable and ordered his removal to Haiti, based on his April 30, 2008 federal conviction for alien smuggling. (Resp. Ex. 2; Petition at ¶ 14).

In his Petition, Resil states that he had been released from immigration custody in Texas on January 21, 2009, and placed under an Order of Release and Supervision. He was asked to report to the ICE at the federal building in Newark, New Jersey, and placed with an electronic ankle-bracelet on February 6, 2009. Resil states that he was able to maintain his job as a truck driver and travel state to state on the condition that he report by calling the ICE once he entered that state to give notification to the ICE as to his whereabouts. Resil contends that he had no contact with law enforcement during this period of release under supervision and while he wore the ankle bracelet. (Petition at ¶¶ 15-17).

The Government provides a record that plainly disputes Resil's allegations concerning his cooperation during his release from ICE custody. On June 1, 2008, Resil was released from federal prison and was transferred to the custody of the DHS/ICE. At that time, Resil was still subject to the three years of supervised release pursuant to his federal criminal conviction. Accordingly, on January 21, 2009, the DHS/ICE reviewed Resil's custody status and released him under an Order of Supervision.

In March 2010, however, Resil violated the terms of his federal supervised release and was arrested by the U.S. Marshals. (See Resp. Ex. 5, May 3, 2010 Notice of Revocation of Release). Due to his federal arrest for violating the terms of his supervised release, the DHS/ICE issued Resil a Notice of Revocation of Release, dated May 3, 2010, and returned Resil to DHS custody. (Id.). On June 1, 2010, the DHS/ICE reviewed its custody of Resil and again released him on an Order of Supervision. (Resp. Ex. 6, June 1, 2010 Order of Supervision). As one condition of his release, Resil was required to report in person to the DHS Service Office located at 970 Broad Street in Newark, New Jersey on specified dates. (Id.). Resil failed to report to the DHS Service Office on July 8, 2010, as required by the June 1, 2010 Order of Supervision.

The Government contends that Resil remained a fugitive from DHS/ICE supervision for nearly four months until he was finally apprehended and returned to DHS/ICE custody on December 6, 2010.*fn2

On that same date, the DHS issued Resil a Notice of Revocation of Release based on changed circumstances that made it significantly likely that the DHS would be able to remove Resil to Haiti in the reasonably foreseeable future. (See Resp. Ex. 7, December 6, 2010 Notice of Revocation of Release). The DHS/ICE reviewed Resil's custody on March 3, 2011, about 90 days after he was returned to custody, and determined that Resil should remain in DHS/ICE custody pending his removal to Haiti, specifically because Resil failed to ...

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