United States District Court, D. New Jersey
KEVIN McNULTY, District Judge.
The petitioner, Derbi Jose Silverio Rosa, is an immigration detainee at the Hudson County Jail in Kearny, New Jersey. Through counsel, he has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the following reasons, the habeas petition will be summarily dismissed without prejudice.
Mr. Silverio Rosa is a native of the Dominican Republic. In 2012, he was convicted of robbery in the second degree, in violation of N.J. STAT. ANN. § 2C:15-1. He was sentenced to a term of imprisonment of at least one year.
Mr. Silverio Rosa has been in immigration detention since May 19, 2015. He asserts that a hearing was scheduled before the Immigration Judge ("IJ") on June 29, 2015, but that the hearing did not proceed because the attorney representing the Department of Homeland Security ("DHS") did not have petitioner's file. Mr. Silverio Rosa asserts that his continued immigration detention is therefore unlawful.
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).
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 ...