United States District Court, D. New Jersey
JOSE GIOVANNI HERNANDEZ TORRES, Petitioner Pro Se, Gadsden, Alabama.
SUSAN D. WIGENTON, District Judge.
Petitioner Mamadou Bamba is an immigration detainee confined at the Essex County Correctional Facility in Newark, New Jersey. He brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241,  challenging his post-removal order detention as unconstitutionally indefinite. This Court will summarily dismiss the Petition, without prejudice, because Petitioner has not alleged facts showing that he has been detained for more than six months after the beginning of the removal period, as required by Zadvydas v. Davis, 533 U.S. 678, 701 (2001), or that his detention is otherwise in violation of federal law.
Petitioner states that he is a native and citizen of Ivory Coast. (ECF No. 1, Petition at ¶¶ 6, 12.) He first entered the United States in September 1997. ( Id., ¶ 13.) Petitioner was taken into custody by the United States Department of Homeland Security/Immigration and Customs Enforcement ("DHS/ICE") on March 16, 2013, and has remained in custody since that date. ( Id., ¶ 6.) He was ordered removed on October 12, 2013, on the grounds that he had been convicted of a crime which constituted a removable offense under Sections 237 or 212 of the Immigration and Nationality ACT ("INA"). ( Id., ¶ 15.) Petitioner alleges that he waived his right to appeal from the order of removal, thus making it final as of the date it was entered by the Immigration Judge, on October 12, 2013. ( Id., ¶ 16.) Petitioner alleges that he has complied with the DHS/ICE in providing the necessary information for obtaining travel documents. ( Id., ¶ 18.)
Petitioner further alleges that, on December 10, 2013, he was removed from the United States for Ivory Coast via Air France with a DHS/ICE escort. Petitioner contends that, upon arrival in Paris, France, French authorities asked for Petitioner's travel documents but the DHS/ICE could not produce them because they allegedly had lost them. Petitioner was then returned to the United States. Petitioner states that he applied for another passport or travel documents from Ivory Coast Embassy, but the Ivory Coast will not issue another passport because the "lost" passport does not expire until 2018. DHS/ICE officer John Bronski gave Petitioner a passport application for Sierra Leone, but Petitioner did not designate this country for his removal. ( Id., ¶ 22.) Petitioner claims these facts demonstrate that his removal is not practicable or likely in the foreseeable future.
A. Standard of Review
"Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face." McFarland v. Scott, 512 U.S. 849, 856 (1994); United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000). Habeas Rule 4 requires a district court to examine a habeas petition prior to ordering an answer and "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." 28 U.S.C. § 2254 Rule 4, applicable through Rule 1(b). Dismissal without the filing of an answer or the State court record is warranted "if it appears on the face of the petition that petitioner is not entitled to relief." Id . see also McFarland, 512 U.S. at 856; Thomas, 221 F.3d at 437 (habeas petition may be dismissed where "none of the grounds alleged in the petition would entitle [the petitioner] to relief").
B. Legality of Detention
When an alien's order of removal becomes final, as alleged by petitioner here, 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'"). This 90-day 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 ...