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Michael v. United States Department of Homeland Security

United States District Court, D. New Jersey

December 9, 2014

BRIAN HENDERSON MICHAEL, Petitioner,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Respondents.

OPINION

KEVIN MCNULTY, District Judge.

I. INTRODUCTION

The petitioner, Brian Henderson Michael, is an immigration detainee at the Hudson County Correctional Facility in Kearny, New Jersey. He is proceeding through counsel 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. Michael's habeas petition on November 24, 2014. He states that he was placed in immigration detention on April 21, 2014, after he completed a state criminal sentence for aggravated assault. He remains in immigration detention while his application for cancellation of removal and for asylum have been pending. His final immigration hearing was scheduled for November 24, 2014. Citing Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011), he claims that his current immigration detention has exceeded a "reasonable period of time." He requests an immediate bond hearing to determine whether his continued immigration detention is justified.

III. LEGAL STANDARD: SUA SPONTE DISMISSAL

With respect to screening the instant petition, 28 U.S.C. § 2243 provides in relevant part:

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.

"[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[.]" Lonchar v. Thomas, 517 U.S. 314, 320 (1996).

IV. LEGAL STANDARD: IMMIGRATION DETENTION

The Attorney General has the authority to detain aliens in removal proceedings before the issuance of a final order of removal, or during the "pre-removal" period. 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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