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Shu Wei Dong v. Aviles

United States District Court, D. New Jersey

March 10, 2014

SHU WEI DONG, Petitioner,
v.
OSCAR AVILES, Respondent.

MEMORANDUM OPINION

WILLIAM J. MARTINI, District Judge.

1. On February 26, 2014, Shu Wei Dong, a native and citizen of China, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 challenging his detention since February 8, 2013, at Hudson County Correctional Facility in New Jersey by the Department of Homeland Security ("DHS"). He asserts in the Petition that he entered the United States in 2005, and on February 8, 2013, DHS issued a notice to appear for removal and took him into custody. (Petition, ECF No. 1 at 3.) Attached to the Petition is an application for issuance of an order to show cause wherein Petitioner states without elaboration that "a final order was issue[d] on September 03, 2013." (Application, ECF No. 1-1 at 1.)

2. Petitioner challenges his detention since February 8, 2013, without a bond hearing on the following grounds: (a) Petitioner is not subject to mandatory detention pursuant to 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 pursuant to 8 U.S.C. § 1226(c) because he has a substantial challenge to his removal. (Petition, ECF No. 1 at 11-12.)

3. 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).

4. In accordance with Rule 4 of the Rules Governing Section 2254 Cases, applicable to § 2241 cases through Rule 1(b), see 28 U.S.C. § 2254 Rules 1(b), this Court has screened the Petition for dismissal. See McFarland v. Scott, 512 U.S. 849, 856 (1994) ("Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face."). For the reasons fully explained below, this Court will summarily dismiss the Petition without prejudice because Petitioner has not alleged facts showing that his custody violates the Constitution, laws or treaties of the United States. See 28 U.S.C. § 2241(c)(3).

5. In Ground One, Petitioner challenges his pre-removal period mandatory detention pursuant to 8 U.S.C. § 1226(c) based on the alleged failure of DHS to take him into custody immediately upon his release from criminal incarceration for an offense listed in § 1226(c). (Petition, First Cause of Action, ECF No. 1 at 11.) Assuming without deciding that Petitioner's order of removal is not final, [1] this Court finds that Petitioner's first ground for habeas relief is foreclosed by Sylvain v. Attorney General, 714 F.3d 150 (3d Cir. 2013), wherein the Third Circuit held that DHS retains the authority to take aliens into mandatory detention under § 1226(c) even if it does not do so immediately upon their release from criminal custody. This Court will dismiss Petitioner's first ground for habeas relief with prejudice as barred by Sylvain.

6. In Ground Two, Petitioner challenges his pre-removal-period mandatory detention pursuant to 8 U.S.C. § 1226(c) on the ground that he "is eligible for Cancellation of Removal for Certain Lawful Permanent Resident[s]. Because Petitioner has a substantial claim that he is not removable, he is not deportable' [or inadmissible'] within the meaning of § 1226(c), [ ] his mandatory detention is not authorized by that statute." (Petition, Second Cause of Action, ECF No. 1 at 12.)

7. Petitioner does not plead sufficient facts to support Ground Two. He concludes that his challenge to removal is "substantial, " but he does not plead facts suggesting the way in which his challenge to removal is substantial. Moreover, although he states that "serious constitutional problems... would b[e] raised if the statute were construed as requiring the mandatory detention of non-citizen[s] with substantial challenges to removal, " he does not identify the nature of the significant constitutional problems that would be avoided if this Court were to construe § 1226(c) as excluding from its reach the mandatory detention of a covered alien who claims to have a substantial challenge to his or her removal. (Petition, ECF No. 1 at 12.) In the absence of facts supporting his conclusory statements, and in the absence of facts showing that his September 3, 2013, order of removal is not final, Petitioner's pleading of Ground Two is insufficient to avoid summary dismissal of this ground without prejudice. See United States v. Thomas, 221 F.3d 430, 437-38 (3d Cir. 2000) (holding that habeas claim supported by vague and conclusory allegations may be summarily dismissed without further investigation); see also Mayle v. Felix, 545 U.S. 644, 649 (2005) (noting that a habeas "petition is expected to state facts that point to a real possibility of constitutional [or legal] error") (citation and internal quotation marks omitted); McFarland v. Scott, 512 U.S. 849, 856 (1994) ("Habeas corpus petitions must meet heightened pleading requirements.")

8. As Petitioner does not assert that he appealed his September 3, 2013, removal order, thereby rendering the removal order final, this Court will also consider whether Petitioner's detention is legal under the statute governing post-removal-period immigration detention.

9. 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). Section § 1231(a)(2) requires DHS to detain aliens during this 90-day removal period. See 8 U.S.C. § 1231(a)(2) ("During the removal period, the Attorney General shall detain the alien"). This 90-day removal period begins on the latest of the following dates:

(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 date of the court's final order.
(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released ...

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