United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge.
before the Court is the petition for a writ of habeas corpus
of Petitioner, Imorou Tadjoudine, filed pursuant to 28 U.S.C.
§ 2241. (ECF No. 1). Following an order to answer, the
Government filed a response to the Petition. (ECF No. 6).
Petitioner did not file a reply. For the following reasons,
this Court will deny the petition without prejudice.
Imoou Tadjoudine, is a native and citizen of Benin who
applied for admission to this country at the Mexican border
near Otay Mesa, California, in September 2015. (Document 1
attached to ECF No. 6 at 2). Because Petitioner was not
entitled to admission as he was not in possession of a valid
visa, Petitioner was taken into immigration custody at that
time and placed in removal proceedings. (Id.). On
September 27, 2016, an immigration judge entered a removal
order against Petitioner. (Document 4 attached to ECF No. 6).
Petitioner appealed that decision to the Board of Immigration
Appeals, but the Board denied his appeal on February 8, 2017.
(ECF No. 6 at 1-2).
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
address that claim, this Court must first determine the
statutory basis for his detention. While 8 U.S.C. §
1226(c), 1 the statute Petitioner contends controls this
matter, 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 § 1231(a), upon the entrance of a
final order of removal an alien enters a ninety day statutory
removal period during which the Government is statutorily 1
As an arriving alien applying for admission (See
Document 1 attached to ECF No. 6 at 2), Petitioner was
actually subject to detention pursuant to 8 U.S.C. §
1225 prior to his final order of removal, not § 1226(c).
Because Petitioner has now received a final order and is
therefore detained pursuant to § 1231(a), however, this
distinction is immaterial to the matter at hand. required 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 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 Board denied
his appeal on February 8, 2017, and Petitioner entered his 90
day removal period upon that date as he has apparently not
filed an appeal and stay motion with the Court of Appeals. 8
U.S.C. § 1231(a)(1)(B)(1).
Petitioner is subject to a final order of removal, 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
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 Court in turn determined 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(a) for less than six months following the entry of a
final order of removal against him, his challenge must be
dismissed as premature. Id.
matter, Petitioner received a final order of removal when the
Board denied his appeal on February 8, 2017. As fewer than
six months have passed since the entry of Petitioner's
final order of removal, Petitioner is still within the six
month period during which his detention under § 1231(a)
must be presumed to be reasonable. Id. As such,
Petitioner's current habeas petition is premature, and
must be dismissed as such.
reasons expressed above, this Court will dismiss
Petitioner's petition for a writ of habeas corpus (ECF
No. 1) without prejudice ...