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Shifat v. Department of Homeland Security

United States District Court, D. New Jersey

April 18, 2017

TAWAKALITU ATINUKE SHIFAT, Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY, Respondent.

          OPINION

          KEVIN MCNULTY United States District Judge.

         I. INTRODUCTION

         The petitioner, Tawakalitu Atinuke Shifat, is an immigration detainee currently lodged at the Hudson County Correctional Facility in Kearny, New Jersey. Ms. Shifat is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Her petition challenges her immigration detention and also alludes to a denial of medical care. For the following reasons, the habeas petition will be summarily dismissed without prejudice.

         II. BACKGROUND

         Ms. Shifat is a native of Nigeria. She was placed into immigration detention on November 2, 2015. On May 5, 2016, an Immigration Judge ("IJ") ordered Ms. Shifat removed. The Board of Immigration Appeals ("BIA") dismissed Ms. Shifat's appeal of that removal order on December 9, 2016. Ms. Shifat's motion to reopen was denied by the BIA on February 24, 2017. According to the petition, Ms. Shifat's motion for stay of removal remains pending before the United States Court of Appeals for the Second Circuit.

         In April 2017, this Court received Ms. Shifat's petition for a writ of habeas corpus. Ms. Shifat asserts that her prolonged immigration detention violates the Constitution. Additionally, she protests a lack of medical care, alluding to an operation that immigration authorities state they cannot fund. (See Dkt. No. 1 at p. 10)

         HI. LEGAL STANDARD: SUA SPONTE DISMISSAL

         With respect to screening the 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. DISCUSSION

         A. Immigration Detention

         Ms. Shifat is now subject to a final order of removal. See 8 C.F.R. § 1241.1(a) (order or removal by IJ becomes final upon dismissal of appeal by the BIA). Post-removal immigration detention can become excessive at some point. Title 8 of the United States Code 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 referred to as the "removal period")." Id. § 1231(a)(1)(A). The removal period begins on the latest of the following:

(i) The date the order of removal becomes administratively final. (ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order. (iii) If the alien is detained or confined (except under an immigration ...

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