SATISH P. PATEL, Petitioner,
ERIC H. HOLDER, JR., et al., Respondents.
SATISH P. PATEL, A 073 535 370, Essex County Correctional Facility, Newark, New Jersey, Petitioner Pro Se.
WILLIAM J. MARTINI, District Judge.
Satish P. Patel filed a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241, challenging his post-removal-period detention at Essex County Correctional Facility, where he is being held in the custody of the Department of Homeland Security ("DHS") without a bond hearing. This Court will summarily dismiss the Petition because Mr. Patel has not alleged facts showing that he has been detained for more than six months after the beginning of the removal period, as required by Zadvydas v. Davis, 533 U.S. 678, 701 (2001), or that his detention is otherwise in violation of federal law. The dismissal is without prejudice to the filing of a new § 2241 petition (in a new case), after January 17, 2014, if Mr. Patel can allege facts showing good reason to believe that there is no significant likelihood of his removal in the reasonably foreseeable future.
Satish Patel asserts that he is a native and citizen of India. He alleges that he arrived in the United States in 1995 and that on December 19, 2012, an immigration judge ordered his removal. He asserts that he appealed, and on April 18, 2013, the Board of Immigration Appeals affirmed the order of removal and denied the appeal. He alleges that DHS took him into custody on July 17, 2013, when he was released by New Jersey from incarceration for a disorderly persons offense, and he has been detained by DHS since that date. Mr. Patel further asserts that he contacted the Indian Consulate in New York, and he was told that "their Diplomatic branch was not and will not issue him travel documents, " but the Consulate did not respond in writing. (Petition, ECF No. 1 at 4.) He claims that his continued detention violates 8 U.S.C. 1231(a)(6), as interpreted by Zadvydas, and violates his right to due process. Id. at 5-6. He seeks an order to show cause and a writ of habeas corpus directing his release.
Under 28 U.S.C. § 2241(c), habeas jurisdiction "shall not extend to a prisoner unless... [h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). This Court has subject matter jurisdiction over the Petition under § 2241 because Petitioner was detained within its jurisdiction in the custody of the DHS at the time he filed his Petition, see Spencer v. Kemna, 523 U.S. 1, 7 (1998), and he asserts that his detention violates federal law and his constitutional rights. See Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d Cir. 2005).
B. Standard of Review
"Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face." McFarland v. Scott, 512 U.S. 849, 856 (1994); United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985). Habeas Rule 4 requires a district court to examine a habeas petition prior to ordering an answer and "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." 28 U.S.C. § 2254 Rule 4, applicable through Rule 1(b). Dismissal without the filing of an answer or the State court record is warranted "if it appears on the face of the petition that petitioner is not entitled to relief." Id .; see also McFarland, 512 U.S. at 856; Thomas, 221 F.3d at 437 (habeas petition may be dismissed where "none of the grounds alleged in the petition would entitle [the petitioner] to relief").
C. Legality of Detention
"Detention during removal proceedings is a constitutionally permissible part of that process." Demore v. Kim, 538 U.S. 510 (2003). The Immigration and Nationality Act ("INA") 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) ("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..."). Once an alien's order of removal is final, the Attorney General is required to remove him or her from the United States within a 90-day "removal period." See 8 U.S.C. § 1231(a)(1)(A) ("Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the removal period').") 8 U.S.C. § 1231(a)(1)(A). This 90-day removal period begins on the latest of the following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the ...