United States District Court, D. New Jersey
KEVIN McNULTY, District Judge.
Petitioner, Pascal Jacques Dubois, is currently an immigration detainee who is detained at the Essex County Correctional Facility in Newark, New Jersey. Mr. Dubois is a native and citizen of Morocco. He is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking his release from immigration detention. For the following reasons, the habeas petition will be dismissed without prejudice.
Mr. Dubois was taken into immigration custody on March 29, 2013, after he was charged with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of three aggravated felonies, namely: (1) a crime of violence for which the sentence exceeds one year, (2) a violation of law relating to murder, rape, or sexual abuse of a minor, and (3) a burglary offense for which the term of imprisonment of at least one year is imposed. (See Dkt. No. 1-2 at p. 46.)
On April 11, 2013, Mr. Dubois' removal proceeding was adjourned until April 24, 2013 to provide him with an opportunity to find an attorney. On April 24, 2013, the removal proceedings were adjourned until May 14, 2013 to provide Mr. Dubois with additional time to find an attorney. (See id.) On May 14, 2013, the removal hearing was adjourned until June 3, 2013 to permit Mr. Dubois additional time to prepare for the hearing. On May 21, 2013, Mr. Dubois filed a motion for change of venue which was denied on June 3, 2013. Also, on June 3, 2013, Mr. Dubois filed an application for asylum, withholding of removal and relief under the Convention Against Torture. Mr. Dubois' merits hearing on his removability was scheduled for August 13, 2013. (See id. at p. 47.)
In June, 2013, Mr. Dubois filed several motions to the Immigration Court requesting the subpoena of certain documents. On July 31, 2013, Mr. Dubois moved for a continuance to gather additional evidence. On August 13, 2013, Mr. Dubois' motion for a continuance was granted. The Immigration Court denied Mr. Dubois' motions for subpoenas on September 4, 2013. (See id.)
On October 15, 2013, the Immigration Court sustained two of the removability charges; specifically the charges pertaining to a crime of violence for which a sentence exceeds one year and a burglary offense for which the term of imprisonment of at least one year was imposed. The Immigration Court also received testimony regarding Mr. Dubois' fear of returning to Morocco. (See id.) On December 17, 2013, the Immigration Court ordered Mr. Dubois removed to Morocco. (See id. at p. 56.)
On January 16, 2014, this Court received Mr. Dubois' petition for writ of habeas corpus pursuant to § 2241. Mr. Dubois names the following individuals as Respondents in this action: (1) John Tsoukaris - Field Office Director with the State of New Jersey for the Department of Homeland Security/Immigration Customs Enforcement; (2) Eric Holder, Jr. - Attorney General of the United States; (3) Jane Holl Lute - Deputy Secretary of the Department of Homeland Security; and (4) Roy L. Hendricks - Warden of the Essex County Correctional Facility. Plaintiff challenges his continued immigration detention since March 29, 2013, and seeks immediate release from immigration custody.
III. STANDARD FOR SUA SPONTE DISMISSAL
With respect to screening the habeas petition, 28 U.S.C. § 2243 provides in relevant part:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.
As Mr. Dubois is proceeding pro se, his petition is held to less stringent standards than those governing pleadings drafted by lawyers. See Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010) ("It is the policy of the courts to give a liberal construction to pro se habeas petitions.") (internal quotation marks and citation omitted); United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007) ("[W]e construe pro se pleadings liberally.") (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Nevertheless, "a district court is authorized to dismiss a [habeas] petition summarily when it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court[.]" Lonchar v. Thomas, 517 U.S. 314, 320 (1996).
A. Legal Standard
The Attorney General has the authority to detain aliens who are in removal proceedings both before and after the issuance of a final order of removal. Section 1226 of Title 8 of the United States Code governs pre-removal-order detention of an alien. Section 1226(a) permits 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:
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 ...