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, Fresnel Joseph, filed pursuant to 28 U.S.C.
§ 2241. (ECF No. 1, 6). Following an order to answer
(ECF No. 5), the Government filed two responses to the
Petition. (ECF Nos. 13-14). Petitioner did not file a reply.
For the following reasons, this Court will dismiss the
petition without prejudice as premature.
is a native and citizen of Haiti who applied for admission
into this country on March 6, 2016, at San Ysidro,
California. (Document 2 attached to ECF No. 13 at 2). Because
Petitioner was not entitled to admission as he did not have a
valid visa, Petitioner was taken into immigration custody and
placed into removal proceedings at that time. Petitioner has
remained in immigration detention since his arrival.
(Id.). On November 21, 2016, an immigration judge
ordered that Petitioner be removed from the United States.
(Document 3 attached to ECF No. 13). Petitioner appealed, and
the Board of Immigration Appeals dismissed his appeal on
March 9, 2017. (Document 1 attached to ECF No. 14 at 3).
Petitioner has apparently not filed a petition for review
with the United States Court of Appeals.
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).
petition, Petitioner contends that his continued immigration
detention violates Due Process as he has been held for a
considerable period of time without receiving a bond hearing.
In order to examine that claim, this Court must first examine
the statutory basis for Petitioner's detention. While 8
U.S.C. § 1225(b) governs the detention of an alien, such
as Petitioner, who is detained as an applicant for admission
and who is not clearly entitled to be admitted into the
United States prior to the 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 § 1231(a), the Government is required to
detain an alien subject to a final order of removal for
ninety days after the issuance of the final removal order.
See 8 U.S.C. § 1231(a)(2); see also 8
U.S.C. § 1231 (a)(1)(B)(ii). Detention during this
ninety day removal period is mandatory. See
Zadvydas, 533 U.S. at 683. 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 administrative final order of
removal on March 9, 2017, when the Board dismissed his
appeal, and Petitioner entered his 90 day removal period upon
that date as he has apparently not filed a petition for
review nor sought a stay from the Court of Appeals. 8 U.S.C.
Petitioner is subject to a final order of removal and has not
sought review or a stay from the Court of Appeals, the
propriety of his detention is controlled by the Supreme
Court's decision in Zadvydas. As this Court
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. 533 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 [dismissed] as
Tejada v. Rodriguez, No. 16-8874, 2017 WL 1591858,
at *2 (D.N.J. May 1, 2017).
matter, Petitioner received a final order of removal on March
9, 2017, and entered his ninety day removal period at that
time. As the ninety day removal period has not yet expired,
Petitioner is well within the six month presumptively
reasonable period established by Zadvydas. As such,
this Court is required to presume that Petitioner's