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Cruz v. Holder

United States District Court, D. New Jersey

September 19, 2014

ABEL GONZALEZ CRUZ, Petitioner,
v.
ERIC HOLDER, Jr., et al., Respondents.

OPINION

KEVIN McNULTY, District Judge.

I. INTRODUCTION

The petitioner, Abel Gonzalez Cruz, is an immigration detainee at the Essex County Correctional Facility in Newark, New Jersey. He is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the following reasons, the habeas petition will be dismissed without prejudice.

II. BACKGROUND

The Court received Mr. Cruz's habeas petition on September 3, 2014. Mr. Cruz states that he has been in immigration detention since October 4, 2013, without having received either an order of deportation or of release. He adds that, on July 7, 2014, the Immigration Judge told him in substance that the matter was ripe for decision. His continued immigration detention, he claims, is not authorized or constitutional, and he requests that he be released under an order of supervision.

III. LEGAL STANDARDS: SUA SPONTE DISMISSAL

With respect to screening a habeas petition, 28 U.S.C. § 2243 provides as follows:

A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.

Because Mr. Cruz is proceeding pro se, his petition will be held to less stringent standards than those governing pleadings drafted by lawyers. See Rainey v. Vomer, 603 F.3d 189, 198 (3d Cir. 2010) ("It is the policy of the courts to give a liberal construction to pro se habeas petitions.") (internal quotation marks and citation omitted); United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007) ("we construe pro se pleadings liberally.") (citing Haines v. Kemer, 404 U.S. 519, 520 (1972)). Nevertheless, "a district court is authorized to dismiss a [habeas] petition summarily when it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court[.]" Loncharv. Thomas, 517 U.S. 314, 320 (1996).

IV. LEGAL STANDARDS: IMMIGRATION DETENTION

The Attorney General has the authority to detain aliens in removal proceedings both before and after the issuance of a final order of removal. Those two situations- "pre-removal" and "post-removal" detention-are governed by separate standards.

A. Pre-Removal Detention

Detention of an alien before an order of removal has been entered is governed by Section 1226 of Title 8 of the United States Code. Section 1226(a) permits the Attorney General to detain or release an alien pending a decision on whether the alien is to be removed from the United States:

On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General -
(1) may continue to detain the arrested ...

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