United States District Court, D. New Jersey
RAFIQ WASIQ, Petitioner Pro Se, Newark, New Jersey.
SUSAN HANDLER-MENAHEM, AUSA OFFICE OF THE U.S. ATTORNEY, Newark, New Jersey.
SUSAN D. WIGENTON, District Judge.
Petitioner Rafiq Wasiq 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,  against various named Respondents,  challenging his postremoval order detention as unconstitutionally indefinite. For the reasons stated below, this Court grants Petitioner's request for habeas relief and will direct the Government to release Petitioner under supervision pending his removal from the United States.
Petitioner is a native and citizen of Bangladesh. (ECF No. 4, Answer at 4.) On May, 5, 2009, Petitioner was arrested by Immigration and Customs Enforcement ("ICE"), and was served with a notice to appear for removal proceedings pursuant to § 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"). Several days later, on May 7, 2009, Petitioner was released on his own recognizance. ( Id.; ECF No. 1, Petition at ¶¶ 12, 13.) On December 2, 2009, Petitioner failed to appear for his immigration proceeding and was ordered removed in absentia. However, the next day, on December 3, 2009, the Immigration Judge re-opened the case sua sponte. (ECF No. 4, Answer at 4.)
Petitioner failed to appear for his next immigration hearing on May 23, 2012, and again was ordered removed in absentia. The Immigration Judge vacated the removal order on June 27, 2012, citing an address change. Immigration proceedings were thereafter transferred to Buffalo, New York at Petitioner's request. Petitioner again failed to appear for his November 21, 2012 removal proceedings and was ordered removed in absentia. On November 23, 2012, Petitioner was classified as a fugitive from an immigration removal order. On April 16, 2013, ICE arrested Petitioner upon his release from the Otis Bantam Correctional Institute, pursuant to the outstanding removal order. Petitioner was detained at the Essex County Correctional Facility in Newark, New Jersey, where he has remained during the pendency of this litigation. ( Id.; ECF No. 1, Pet. at ¶¶ 15-17.)
Petitioner alleges that he has cooperated fully with ICE officials in their efforts to remove Petitioner from the United States. Specifically, Petitioner alleges that he has provided identity documents and biographical information, and has applied for travel documents with his embassy or consulate. ( Id. at ¶ 18.) Petitioner further states that a custody review was conducted by the Department of Homeland Security ("DHS") Headquarters Post-Order Detention Unit ("HQPDU") on October 16, 2013, but release from custody was denied because a request for a travel document had been submitted to the Bangladesh Embassy making his removal reasonably foreseeable in the near future. ( Id. at ¶ 20, attachment.) Petitioner also contends that ICE has been unable to remove him and has not reached out to other countries for removal of Petitioner. ( Id. at ¶ 19.)
The Government counters that Petitioner has not been entirely cooperative in the removal effort. On May 21, 2013, ICE in Newark submitted a travel document request to the Government of Bangladesh at the New York Bangladesh Consular Office. (ECF No. 4, Answer at 5; Declaration of Melissa A. Schubert ("Schubert Del.") at ¶6.) On October 15, 2013, the Newark ICE office forwarded a custody checklist to the ICE Headquarters Post Order Custody Review Unit (POCRU) for adjudication of custody. On October 15, 2013, POCRU inquired as to the status of Petitioner's travel document. On October 16, 2013, the Travel Document Unit ("TDU") advised POCRU that there was a significant likelihood of Petitioner's removal in the foreseeable future. ( Id., Schubert Dec. at ¶7.)
Thereafter, on October 29, 2013, Petitioner allegedly refused to complete an updated identity application. Despite Petitioner's non-cooperation however, on November 7, 2013, the Newark field office submitted the requisite travel document fee and passport photos directly to the Bangladesh Embassy. ( Id. ) The Bangladesh consulate confirmed receipt of the travel document fee and passport photographs and advised that a travel document was issued for Petitioner on November 15, 2013 and mailed to ICE. ( Id., Schubert Dec. at ¶8.)
As of the date of this Opinion, Petitioner remains in detention and has not yet been removed from the United States.
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 ...