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Nkansah v. Aviles

United States District Court, D. New Jersey

July 2, 2015

FELIX NKANSAH, Petitioner,
v.
OSCAR AVILES, Respondent.

OPINION

KEVIN McNULTY, District Judge.

I. INTRODUCTION

The petitioner, Felix Nkansah, is an immigration detainee at the Hudson County Correctional Center in Kearny, 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 denied without prejudice.

II. BACKGROUND

Mr. Nkansah states that he has been in immigration detention since December 17, 2014. The habeas petition raises two sets of claims. First, Mr. Nkansah asserts that his continued immigration detention is unlawful and seeks release. Second, Mr. Nkansah challenges the conditions of his confinement, claiming that he has been denied adequate medical care for a serious ear infection and has been prevented from sending money to ailing family members.

The respondent was ordered to file an answer to the habeas petition. On June 9, 2015, this Court received a letter from respondent, along with accompanying documentation that Mr. Nkansah has now been ordered removed from the United States by the Immigration Judge ("IJ"). Additionally, respondent notes that Mr. Nkansah has waived his right to appeal the IJ's order of removal. Respondent argues that the IJ's decision and Mr. Nkansah's waiver of his appeal rights moot this habeas petition.

III. DISCUSSION

A. Pre-Order Removal 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 alien; and
(2) may release the alien on-
(A) bond of at least $1, 500 with security approved by, and containing conditions prescribed by, the Attorney General;
(B) conditional parole;...

8 U.S.C. § 1226(a). "Except as provided in subsection (c)" is included because, under Section 1226(c), certain criminal aliens are subject ...


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