United States District Court, D. New Jersey
Jose L. Linares, United States District Judge.
before the Court is the petition for a writ of habeas corpus
of Petitioner, Victor Manuel Puello Tejada, filed pursuant to
28 U.S.C. § 2241. (ECF No. 1). Following an order to
answer (ECF No. 2), the Government filed two responses to the
Petition. (ECF No. 5, 7). Petitioner did not file a formal
reply brief. For the following reasons, this Court will deny
the petition without prejudice.
is a native and citizen of the Dominican Republic who Dated
this country and became a lawful permanent resident in 1995.
(Document 1 attached to ECF No. 5 at 2). In April 11, 2008,
however, Petitioner was convicted of possession of cocaine in
the Superior Court of New Jersey, Union County.
(Id.). Following his release from detention on his
drug conviction, immigration officials took Petitioner into
immigration custody on May 4, 2016, and initiated removal
proceedings against him. (Id. at 11). Petitioner was
thereafter ordered removed by an immigration judge on
November 17, 2016. (Id. at 28). Petitioner appealed,
but the Board of Immigration Appeals ("BIA")
dismissed his appeal by way of a written opinion on March 23,
2017. (Document 1 attached to ECF No. 7). Petitioner has
apparently not appealed the dismissal of his appeal, nor
sought a stay of removal in the Court of Appeals. (ECF No. 7
at 1 n. 1). Petitioner has remained in immigration detention
throughout his immigration proceedings. (ECF No. 1, 5, 7).
28 U.S.C. § 2241(c), habeas relief may be extended to a
prisoner only when he "is in custody in violation of the
Constitution or laws or treaties of the United States."
28 U.S.C. § 2241(c)(3). A federal court has jurisdiction
over such a petition if the petitioner is "in
custody" and the custody is allegedly "in violation
of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2241(c)(3); Maleng v.
Cook, 490 U.S. 488, 490 (1989). As Petitioner is
currently detained within this Court's jurisdiction, by a
custodian within the Court's jurisdiction, and asserts
that his continued detention violates due process, this Court
has jurisdiction over his claims. Spencer v. Kemna,
523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit
Court, 410 U.S. 484, 494-95, 500 (1973); see also
Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
habeas petition, Petitioner contends that his continued
immigration detention violates Due Process. In order to
examine that claim, this Court must first determine the
statutory basis for Petitioner's detention. While 8
U.S.C. § 1226(c) governs the detention of aliens who
have been convicted of a crime prior to their receipt of a
final order of removal, once a final order of removal is
issued, an alien is instead subject to mandatory detention
under 8 U.S.C. § 1231(a). Under that statute, upon the
entrance of a final order of removal an alien enters a
statutory 90 day removal period during which the Government
is required by law to detain the alien. See 8 U.S.C.
§ 1231(a)(2); see also 8 U.S.C. §
1231(a)(1)(B)(ii). Thus, once an alien is subject to a final
order of removal, his detention is governed by § 1231,
unless and until he seeks review of his removal order by
filing a petition for review with the Court of Appeals and is
granted a stay of removal. See 8 U.S.C. § 1231
(a)(1)(B)(ii). In this matter, Petitioner received an
administratively final order of removal when the BIA
dismissed his appeal on March 23, 2017, and Petitioner
entered his 90 day removal period upon that date as he has
not filed an appeal with the Court of Appeals. 8 U.S.C.
Petitioner is subject to a final order of removal and has not
sought review nor a stay from the Court of Appeals, the
propriety of his detention is controlled by the Supreme
Court's decision in Zadvydas. In
Zadvydas, the Court observed that § 1231 (a)
requires the Government to detain all aliens subject to
administratively final orders of removal during the statutory
ninety day removal period. 501 U.S. at 683. The Court further
held that the statute permits the Government to detain aliens
beyond that ninety day period so long as their detention
remains "reasonably necessary" to effectuate their
removal. Id. at 689, 699. Based on these statutory
provisions, the Zadvydas Court in turn held that an
alien may be detained under § 1231(a) for a period of up
to six months following his final order of removal during
which his continued detention must be presumed to be
reasonable and therefore not violative of Due Process.
Id. at 701. Thus, where a removable alien has been
detained under § 1231 for less than six months following
a final order of removal, his challenge must be denied as
received his administratively final order of removal on March
23, 2017. As fewer than ninety days have passed since the
entry of his final order of removal, Petitioner is still well
within the ninety day removal period during which the
Government is required by statute to detain him. Because
Petitioner is still within the removal period, and has
certainly been held for fewer than six months following the
entry of his final order of removal, his detention is
presumptively reasonable and his current habeas petition is
premature. Id. Petitioner's habeas petition must
therefore be denied without prejudice at this time.
reasons expressed above, this Court will deny
Petitioner's petition for a writ of habeas corpus (ECF
No. 1) without prejudice ...