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Faurelus v. Aviles

United States District Court, D. New Jersey

February 24, 2014

GINO FAURELUS, Petitioner,
v.
OSCAR AVILES, et al., Respondents.

GINO FAURELUS, A044 587 984, Kearny, NJ, Petitioner Pro Se.

KRISTIN L. VASSALLO, Assistant United States Attorney, PAUL J. FISHMAN, United States Attorney, Newark, NJ.

OPINION

WILLIAM J. MARTINI, District Judge.

On November 12, 2013, Gino Faurelus, a native and citizen of Haiti, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging his pre-removal period mandatory detention since August 10, 2011, pursuant to 8 U.S.C. § 1226(c), in the custody of Respondent and the Department of Homeland Security ("DHS"). See Diop v. ICE, 656 F.3d 221 (3d Cir. 2011). Respondent filed an Answer and thereafter informed this Court that on February 11, 2014, the Board of Immigration Appeals ("BIA") dismissed Petitioner's appeal of the order of removal. Since Petitioner's order of removal became administratively final when the BIA dismissed his appeal, he is no longer being detained pursuant to 8 U.S.C. § 1226(c). However, because his detention will again be governed by § 1226(c) if he files a petition for review in the Second Circuit and that court grants a stay, this Court will not dismiss the Petition as moot, but will stay the matter and administratively terminate the case, subject to reopening in the event that Petitioner files a petition for review and obtains a stay of his removal.[1]

I. BACKGROUND

On April 25, 1994, Petitioner was granted lawful permanent residence status. On August 10, 2010, he applied for admission as a returning lawful permanent resident; DHS paroled him into the United States, and served him with a notice to appear for removal based on a 2002 conviction for conspiracy to defraud the United States and health care fraud. DHS took Petitioner into custody on August 10, 2011. On September 19, 2013, an Immigration Judge ordered Petitioner's removal on the ground that his conviction of conspiracy to defraud the United States and health care fraud constituted crimes involving moral turpitude. On September 30, 2013, Petitioner appealed to the BIA.

On November 12, 2013, Petitioner filed this § 2241 Petition challenging his pre-removal period detention since August 10, 2011, without the possibility of release, as not authorized by statute and in violation of the Due Process Clause of the Fifth Amendment. By Order entered December 9, 2013, this Court construed the Petition as challenging detention without a hearing on three grounds: (a) Petitioner is not subject to mandatory detention under 8 U.S.C. § 1226(c) because DHS did not take Petitioner into custody when he was released from criminal incarceration; (b) Petitioner is not subject to mandatory detention because he has a substantial challenge to his removal; and (c) he is entitled to an individualized bond hearing to determine if he is a danger to the community or a flight risk because his detention since August 10, 2011, under 28 U.S.C. § 1226(c) has become unreasonably prolonged, see Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011). This Court dismissed Petitioner's claim (a) because it is foreclosed by Sylvain v. Attorney General of U.S., 714 F.3d 150 (3d Cir. 2013), and ordered DHS to file an answer on the remaining two claims, i.e., substantial challenge to removal and Diop.

On January 8, 2014, Respondent filed an Answer, arguing that the Petition should be dismissed because the mandatory detention provision of § 1226(c) applies to Petitioner without regard to his legal challenge to removal and because his detention has not been unreasonably prolonged within Diop. On February 11, 2014, the Board of Immigration Appeals dismissed Petitioner's appeal.

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). A federal court has subject matter jurisdiction under § 2241(c)(3) if two requirements are satisfied: (1) the petitioner is "in custody, " and (2) the custody is "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 DHS at the time he filed his Petition, see Spencer v. Kemna, 523 U.S. 1, 7 (1998), and he asserts that his detention is not statutorily authorized and violates due process. See Zadvydas v. Davis, 533 U.S. 678, 699 (2001).

B. Mootness

Respondent argues that, because Petitioner's "detention is no longer governed by § 1225(b)(2(A), there is no longer a live case or controversy' regarding [his] pre-removal order detention and the petition should therefore be dismissed as moot." (Respondent's Feb. 18, 2014, Letter, ECF No. 8 at 2). To be sure, the exercise of judicial power depends upon the existence of a case or controversy because Article III of the Constitution limits the judicial power of federal courts to "cases or controversies" between parties. U.S. Const. art. III, § 2. "This "case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.... The parties must continue to have a personal stake in the outcome' of the lawsuit." Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990). "This means that, throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Spencer, 523 U.S. at 7 (citation and internal quotation marks omitted).

In this case, Petitioner argues primarily that he is entitled to release under Diop because his pre-removal-period detention, pursuant to 8 U.S.C. § 1226(c), since August 10, 2011, has become unreasonably prolonged. However, the statutory authority to detain an alien depends upon at which stage the alien is in the removal process. See Leslie v. Attorney General of the U.S., 678 F.3d 265, 270 (3d Cir. 2012). Section 1226 governs the pre-removal-period detention of an alien. See 28 U.S.C. § 1226. Generally, pursuant to Section 1226, the Attorney General has the authority to arrest and detain an alien pending a decision on whether the alien is to be removed from the United States. See 28 U.S.C. § 1226(a). Section 1226 also sets certain parameters for pre-removal-period detention, including when detention is mandatory (such as in the case of criminal aliens) and when a bond hearing must be held. See 28 U.S.C. § 1226(a) and (c). Once the removal period ...


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