The opinion of the court was delivered by: Hochberg, District Judge
Petitioner Ibrahim Husein, an alien currently detained at Essex County
Correctional Facility in Newark, New Jersey, has submitted a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn1
The named Respondents include U.S. Attorney
General Eric Holder, Essex County Correctional Facility Warden Roy
Hendricks, and various federal immigration officials.
The Respondents have moved to dismiss. For the reasons stated below, the Petition will be dismissed.
Petitioner is a native and citizen of Jordan, who came to the United States as a non-immigrant in 2003 and became a lawful permanent resident in 2006. Thereafter, Petitioner was convicted of burglary.
On August 13, 2009, Petitioner was taken into custody by immigration officers and was served with a Notice to Appear before an Immigration Judge to show cause why he should not be removed based upon a violation of Section 237(a)(2)(A)(i) of the Immigration and Nationality Act. On that same date, a $15,000 bond was set, which Petitioner was eligible to post to obtain his release until a final order of removal was issued. Petitioner did not post bond and remained in custody.
Petitioner appeared for a removal hearing on September 14 and October 7, 2009. On March 1, 2010, the Immigration Judge denied Petitioner's applications for asylum and withholding of removal and ordered Petitioner removed. Petitioner appealed to the Bureau of Immigration Appeals which held, on May 5, 2010, that it lacked jurisdiction to hear Mr. Husein's appeal and ordered Petitioner removed. Petitioner filed a Motion to Reconsider with the Bureau of Immigration Appeals on June 1, 2010, but did not file for a stay of removal.
As Petitioner had not filed for a stay of removal, the Bureau of Immigration and Customs Enforcement scheduled Petitioner for removal on June 7, 2010, but Petitioner refused to board the aircraft. Petitioner was then scheduled for an escorted removal on June 29, 2010, but he again refused to board the aircraft voluntarily. Petitioner was again scheduled for removal, but the BIA granted Petitioner's motion to reconsider and re-opened his case, so the removal was cancelled.
This undated Petition was received by this Court on November 15, 2010. At that time, Petitioner's motion to reconsider was pending before the BIA. Here, Petitioner challenges his prolonged detention in connection with his removal proceedings. He contends that his prolonged detention violates his rights to procedural and substantive due process.
On January 6, 2011, while this Petition was pending, the BIA dismissed Petitioner's administrative appeal, denied his motion to remand the case to the Immigration Judge, and denied his request for a stay of removal as moot. Petitioner has not advised this Court of any further challenges to his removal, either administrative or judicial, and this Court has located no petition for review on the docket of the U.S. Court of Appeals for the Third Circuit. Accordingly, it appears that Petitioner's order of removal became final on January 6, 2011.
Respondents have moved for dismissal of the Petition on the grounds that the BIA's January 2011 decision renders this case simultaneously moot and unripe, and, in the alternative, that Petitioner's pre-final-order detention was due to his own refusal to board the planes when BICE attempted to remove him, and that his failure to post bond prior to the issuance of a final removal order is not actionable in habeas. Petitioner has had an opportunity to reply, and this matter is now ready for decision.
At the time he filed this Petition, Petitioner was detained pursuant to the discretionary detention provisions of 8 U.S.C. § 1226(a). He had been granted, but had not posted, release on a $15,000 bond. During the pendency of this proceeding, however, on January 6, 2011, Petitioner's order of removal became final. Because a final order of removal has been issued against Petitioner, he is no longer detained pursuant to § 1226(a), which governs only detention prior to the entry of a final order of removal. Instead, Petitioner is ...