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Aliaga v. Hendricks

United States District Court, D. New Jersey

May 15, 2014

ROBERTO JESUS ARIAS ALIAGA, Petitioner,
v.
ROY L. HENDRICKS, Respondent.

OPINION

KEVIN MCNULTY, District Judge.

I. INTRODUCTION

Petitioner, Roberto Jesus Arias Aliaga, is an immigration detainee who was previously detained at the Essex County Correctional Facility in Newark, New Jersey.[1] Mr. Arias Aliaga is a citizen and native of Venezuela. 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.

II. BACKGROUND

In 2009, Mr. Arias Aliaga was convicted in New Jersey of unlawfully taking a police weapon and sentenced to six years in prison. On October 21, 2012, upon his release from the New Jersey State Prison, he was taken into immigration custody. On January 23, 2013, an Immigration Judge ordered Mr. Arias Aliaga removed to Venezuela. On July 3, 2013, the Board of Immigration Appeals affirmed the removal. On October 9, 2013, the United States Court of Appeals for the Third Circuit denied Mr. Arias Aliaga's motion for a stay of removal. On December 3, 2013, Mr. Arias Aliaga's Third Circuit appeal was dismissed for failure to prosecute.

On October 2, 2013, while Mr. Arias Aliaga's Third Circuit appeal was pending, the United States Immigration and Customs Enforcement Agency ("ICE") issued its first post-order removal custody review. ICE determined at that time that Mr. Arias Aliaga would remain in custody. It noted that ICE was working with the Embassy of Venezuela to obtain a travel document to effect his removal and that it expected that the travel document would be issued in the reasonably foreseeable future. On January 8, 2014, Mr. Arias Aliaga's immigration detention was again reviewed by ICE with the same result. ICE noted in this decision that Mr. Arias Aliaga's travel document request was still pending before the government of Venezuela and that his removal was expected to occur in the reasonably foreseeable future.

On January 29, 2014, this Court received Mr. Arias Aliaga's petition for writ of habeas corpus. Mr. Arias Aliaga argues in the petition that the amount of time he has spent in immigration detention violates Zadvydas v. Davis, 533 U.S. 678 (2001). Additionally, he asserts that his due process rights have been violated. Respondent has filed a response to the habeas petition.

III. DISCUSSION

The Attorney General has the authority to detain aliens in removal proceedings both before and after the issuance of a final order of removal. Post-removal order immigration detention is governed by 8 U.S.C. § 1231(a). Section 1231(a)(1)(A) states that, "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")." Id. § 1231(a)(1)(A). The 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 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 from detention or confinement.

Id. § 1231(a)(1)(B). Federal regulations provide that:

An order of removal made by the immigration judge at the conclusion of the proceedings under section 240 of ...

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