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Pusey v. Aviles

United States District Court, Third Circuit

January 29, 2014

ROGER O. PUSEY, Petitioner,
v.
OSCAR AVILES, et al., Respondents.

ROGER O. PUSEY, 262756 Hudson County Correctional Center, Kearny, NJ.

OPINION

FAITH S. HOCHBERG, District Judge.

Petitioner Roger O. Pusey, an immigration detainee confined at the Hudson County Correctional Center in Kearny, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, [1] challenging his mandatory detention during his immigration removal proceedings. The sole respondent is Oscar Aviles. Because it appears from review of the Petition that Petitioner is not entitled to the relief he seeks at this time, the Court will deny the petition without prejudice.

I. BACKGROUND

Petitioner, a native of Jamaica, who, at the time of filing the petition, had been detained for approximately nine months awaiting the resolution of his removal proceedings. Petitioner came to the United States as a Lawful Permanent Resident on June 29, 1990. He received a burglary conviction and an assault conviction on May 11, 2004 and was sentenced to six years of incarceration for the former, two years of incarceration for the latter conviction. Then, on August 23, 2004, he was convicted of larceny and failure to appear, receiving two concurrent 30 day terms of imprisonment for each.

He was subsequently taken into custody by U.S. Immigration and Customs Enforcement ("ICE") on August 9, 2012. Petitioner now files this petition challenging his ongoing mandatory detention because he was not taken into immigration custody immediately upon release from criminal incarceration related to a removable offense.

II. DISCUSSION

A. Legal Standard

Federal law sets forth the authority of the Attorney General to detain aliens in removal proceedings, both before and after issuance of a final order of removal. Title 8 U.S.C. § 1226 governs pre-removal-order detention of an alien. Section 1226(c) authorizes the Attorney General to arrest, and to detain or release, an alien, pending a decision on whether the alien is to be removed from the United States, except as provided in subsection (c). Section 1226(a) provides, in relevant part:

(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, the Attorney General -
(1) may continue to detain the arrested alien; and
(2) may release the alien on-
(A) bond of at least $1, 500 with security approved by, and containing conditions prescribed by, ...

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