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Moustapha Magassouba v. Eric H. Holder

August 31, 2011

MOUSTAPHA MAGASSOUBA, PETITIONER,
v.
ERIC H. HOLDER, ET AL., RESPONDENTS.



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

NOT FOR PUBLICATION

OPINION

Petitioner Moustapha Magassouba, an alien detainee currently confined at Bergen County Jail, in Hackensack, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241*fn1 and an application for leave to proceed in forma pauperis. The respondents are Warden Robert J. Bigott and various federal officials.

Respondents were instructed to answer but instead have moved to dismiss. For the sake of expediency, the Court will not require Respondents to submit a separate answer and will consider the motion to dismiss as the response to the Petition. The Court has considered all written submissions. For the reasons stated below, the Petition will be dismissed.

I. BACKGROUND

Petitioner is a native citizen of the Republic of Guinea. He entered the United States through JFK Airport on a non-immigrant B1 visa on June 17, 1990 with an authorization to remain in the United States for ninety days. Petitioner has remained in the United States since the expiration of the ninety day period without further authorization. He married a citizen of the United States on November 12, 1999.

Petitioner was convicted of forgery on August 7, 2000. Thereafter, he was issued a Notice to Appear before an immigration judge regarding the expired visa. On August 8, 2002, his wife filed an I-130 petition for alien relative.

Petitioner was released from custody on July 31, 2003 and arrested shortly thereafter on August 12, 2003 on narcotics charges. His immigration proceedings were terminated for administrative purposes due to his custody related to the drug charges. He was eventually sentenced to time served on those charges on November 24, 2009; his appeal of that conviction and sentence is still pending. He was then taken into custody by United States Immigration and Customs Enforcement ("ICE") on November 27, 2009 and the immigration proceedings were reopened. A bond hearing was held on February 1, 2010 in which an immigration judge held that, based on the drug conviction, Petitioner poses a danger to society and is ineligible for bail. Petitioner did not appeal the denial of bail by the immigration judge.

The removal proceedings were then stayed for review of the I-130 petition for alien relative that had been filed by his wife, which was ultimately approved on April 29, 2010. The removal proceedings once again resumed and are currently pending. At a recent hearing before the immigration judge on March 8, 2011, that court held that due to his forgery conviction, Petitioner was ineligible for cancellation of removal. At that hearing, the judge also noted that, despite Petitioner's conviction for drug trafficking being currently on direct appeal, that conviction would like render Petitioner inadmissible to the United States. Final briefing has been ordered by the immigration judge.

II. STANDARDS FOR REVIEWING PRO SE PLEADINGS

A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. 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).

III. DISCUSSION

Petitioner is currently detained pursuant to the discretionary detention provisions of 8 U.S.C. § 1226(a), which governs detention prior to the entry of a final order of removal. Section 1226(a) authorizes the Attorney General of the United States to issue a warrant for the arrest and detention of an alien pending a decision on whether the alien is to be removed from the United States. See 8 U.S.C. § 1226(a). Specifically, § 1226(a) provides:

(a) Arrest, detention, and release On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, ...


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