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, Marcel Pineda Rojas, filed pursuant to 28
U.S.C. § 2241. (ECF No. 1). Following an order to answer
(ECF No. 2), the Government filed a response to the Petition.
(ECF No. 6). Petitioner did not file a reply. For the
following reasons, this Court denies the petition without
is a native and citizen of Guatemala who Dated this country
at some point prior to July 2015. (Document 1 attached to ECF
No. 6 at 2). On July 24, 2015, Petitioner was convicted of
possession of cocaine in the Superior Court of New Jersey,
Bergen County. (Id.). Following Petitioner's
release from custody on that charge, Petitioner was taken
into immigration custody on September 8, 2015, and placed
into removal proceedings. (Id.). On February 16,
2016, an immigration judge ordered Petitioner removed from
the United States and denied all of Petitioner's
applications for relief from removal. (Id. at 3,
Document 5 attached to ECF No. 6). Petitioner appealed to the
Board of Immigration Appeals, but that appeal was dismissed
on June 3, 2016. (Document 7 attached to ECF No. 6).
Petitioner thereafter filed a petition for review with the
Third Circuit. (Document 1 attached to ECF No. 6 at 3).
Petitioner, however, did not file a motion for a stay. (ECF
Docket Sheet for Third Circuit Docket No. 16-3043).
2016, immigration officials contacted the Guatemalan
consulate and requested that a travel document be issued for
Petitioner. (Document 1 attached to ECF No. 6 at 3). The
consulate told immigration officials that a travel document
would be issued following a decision from the Court of
Appeals on Petitioner's petition for review.
(Id.). On April 11, 2017, the Third Circuit issued
an order and opinion dismissing in part and denying in part
Petitioner's petition for review. Pineda-Rojas v.
Att'y Gen., No. 16-3043, 2017 WL 1325682 (3d Cir.
Apr. 11, 2017).
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. Because Petitioner is subject
to a final order of removal insomuch as the Board of
Immigration Appeals dismissed his appeal of his removal order
and Petitioner neither sought nor received a stay from the
Third Circuit, see 8 U.S.C. § 1231(a)(1)(B),
Petitioner is currently detained pursuant to 8 U.S.C. §
1231(a), and the propriety of his detention is controlled by
the Supreme Court's decision in Zadvydas. In
Zadvydas, the Supreme Court held that, following a
final order of removal, the Government is required to detain
an alien throughout a ninety-day statutory removal period.
533 U.S. at 683. As the statute further permits the
Government to continue to detain aliens beyond that
ninety-day period so long as the detention remains
"reasonably necessary" to effectuate their removal,
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
detention will be presumed to be reasonable. Id. at
alien detained under § 1231(a) may therefore not
challenge his detention under that statute until this
six-month presumptive period expires. Id. Even after
this presumptively reasonable period expires, an alien will
not be entitled to relief from immigration detention unless
he can "provide good reason to believe that there is
no significant likelihood of removal in the reasonably
foreseeable future." Alexander v. Att'y
Gen., 495 F.App'x 274, 276 (3d Cir. 2012) (quoting
Zadvydas, 533 U.S. at 701). Where an alien makes
such a showing, the Government is required to rebut the
evidence submitted by the alien and show that the alien's
removal is likely in the reasonably foreseeable future in
order to establish that the alien's detention remains
matter, Petitioner has been held for approximately eleven
months following the entry of his final order of removal in
June 2016. Petitioner provides no evidence other than the
length of his detention in support of his assertion that
there is no significant likelihood of his removal in the
reasonably foreseeable future. Even if this Court were to
assume that the length of Petitioner's detention alone is
sufficient to provide good reason to believe his removal is
not likely in the near future, the Government has more than
rebutted that showing by submitting evidence which suggests
that the Guatemalan Consulate has been prepared to issue a
travel document for the entirety of Petitioner's
post-final order detention, and has merely been waiting for
the outcome of Petitioner's petition for review before
doing so. (Document 1 attached to ECF No. 6).
the Third Circuit has now dismissed in part and denied in
part Petitioner's petition for review, and Petitioner has
neither sought nor received a stay of removal, that
impediment to the Consulate's issuance of a travel
document no longer exists and a travel document should
therefore be forthcoming in the near future. Thus, the record
currently before the Court is more than sufficient to rebut
any showing Petitioner has made to suggest he is unlikely to
be removed in the foreseeable future now that the Third
Circuit has ruled upon his petition for review, and
Petitioner has thus failed to establish that there is no
reasonable likelihood of his removal in the reasonably
foreseeable future. Petitioner is therefore not entitled to
relief under Zadvydas based on the record before the
Court, and his petition must be denied without prejudice as
result. Alexander, 495 F.App'x at 276.