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Filmon v. Hendricks

United States District Court, Third Circuit

November 15, 2013

KESHI FILMON, Petitioner,
v.
ROY L. HENDRICKS., Respondents.

KESHI FILMON, A 025 306 765, Essex County Correctional Facility, Newark, New Jersey, Petitioner Pro Se.

OPINION

DENNIS M. CAVANAUGH, District Judge.

Keshi Filmon 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. Although DHS has detained Filmon beyond the six-month presumptively reasonable period of post-removal-period detention (which expired on October 8. 2013), this Court is constrained to dismiss the Petition because it does not allege facts showing that there is "good reason to believe that there is nu significant likelihood of removal [to Ethiopia] in The reasonably foreseeable future., " Zathydas v. Davis, 533 U.S. 678 701 (2001). or that Filmon's 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), in the event that Filmon can allege facts, at the time of tiling: showing good reason to believe that there is no significant likelihood of his removal in the reasonably foreseeable future.

I. BACKGROUND

Keshi Filmon asserts that he is a native and citizen of Ethiopia. He alleges that he entered the United States on September 13, 1983, as a refugee, and in 1985 he became a lawful permanent resident, (Petition, ECF No. 1 at 2.) He states that DHS issued a notice to appear for removal on October 17, 2011, and on December 6, 2011, an Immigration Judge ordered his removal. Id. He alleges that DHS released him under supervision on April 27, 2012, but arrested him on April 8, 2013, because he failed to report on March 6, 2013. Id. He asserts that he has cooperated with efforts to remove him and he has applied for a travel document. Id. at 4. He also alleges that he does not have a contagious disease, his release would not cause serious adverse foreign policy consequences, he is not detained on account of terrorism concerns, and his release would not pose special danger to the public. Id. He contends that his continued detention violates § 1231(a)(6) and the accompanying regulations "[b]ecause there is no significant likelihood of removal in the reasonably foreseeable future, and because none of the special circumstances exist here to justify petitioner[']s continued detention." Id. He further argues that his detention violates due process because he "is not dangerous, not a flight risk, and cannot be removed." Id. He seeks an order declaring that his detention is not statutorily authorized and violates the Fifth Amendment, and directing DHS to release him. Id. at 4-5.

II. DISCUSSION

A. Jurisdiction

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 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 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 ...

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