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Alghazali v. Tsoukaris

United States District Court, D. New Jersey

July 27, 2017

AHMED ESMAIL MOHAMMED ALGHAZALI, Petitioner,
v.
JOHN TSOUKARIS, et al., Respondent.

          OPINION

          JOSE L. LINARES CHIEF UNITED STATES DISTRICT JUDGE.

         Presently before the Court is the amended petition for a writ of habeas corpus of Petitioner, Ahmed Esmail Mohammed Alghazali, filed pursuant to 28 U.S.C. § 2241. (ECF No. 3). Following an order to answer (ECF No. 5), the Government filed a response to the Petition (ECF No. 12), to which Petitioner has replied (ECF Nos. 14). For the following reasons, this Court will deny the petition without prejudice.

         I. BACKGROUND

         Petitioner, Ahmed Esmail Mohammed Alghazali, a native and citizen of Yemen who became a lawful permanent resident of the United States in May 1998. (ECF No. 12-1 at 4). In February 2009, however, he was convicted in the United States District Court for the Eastern District of Virginia of conspiracy to transport contraband cigarettes. (Id.). Petitioner received an eighteen month sentence. (Id. at 5). Following his release from prison, immigration officials took Petitioner into custody and placed him into removal proceedings in April 2010. (Id.). Petitioner was ordered removed in August 2010 and was deported to his home country of Yemen. (Id.).

         Six years later, on April 30, 2016, Petitioner attempted to re-enter the United States in New York, but was not admitted as Petitioner did not possess a valid visa or other travel document. (Id. at 17). Petitioner was thus detained and placed into removal proceedings. (Id.). Based on a credible fear interview conducted in May 2016, Petitioner was placed in asylum proceedings before an immigration judge, which apparently remain pending at this time. (Id.). Petitioner also sought to reopen or have his prior removal order reconsidered, but the immigration court which entered that order denied his motion to reopen and for reconsideration in December 2016. (Id. at 4-12). Since his arrival in New York in April 2016, Petitioner has remained detained as an applicant for admission pursuant to 8 U.S.C. § 1225(b)(2)(A).

         II. DISCUSSION

         A. Legal Standard

         Under 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).

         B. Analysis

         1. Petitioner's requests for review of the decisions of the immigration courts

         In his habeas petition, Petitioner presents two classes of claims. First, he presents a classic habeas claim in which he challenges the constitutionality of his ongoing immigration detention pending a decision in his removal proceedings, which this Court addresses in detail below. In his second class of claims, however, Petitioner addresses not his detention, but rather the decisions of the immigration courts and requests that this Court review the decisions of the various immigration courts finding him subject to deportation prior to his removal from this country in 2010 and finding that he failed to present a valid basis for reconsideration or reopening of his prior removal order during his current immigration proceedings. This Court will address this latter class of claims first.

         In Petitioner's second class of claims, Petitioner essentially asks that this Court provide collateral, quasi-appellate review of the decisions of the immigration courts both in issuing his original removal order and in denying his requests to reopen or reconsider that order, all of which he asserts were made in error. Pursuant to 8 U.S.C. § 1252(a)(5), however, "a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal." This Court thus lacks jurisdiction review challenges to the immigration courts' entry of, or refusal to reconsider or reopen, an order of removal such as the one Petitioner received. See Chuva v. Att'y Gen., 432 F.App'x 176, 177 (3d Cir. 2011). All of petitioner's claims challenging the decisions of the immigration courts to enter or refuse to review or reopen Petitioner's removal order must therefore be dismissed for lack of jurisdiction. Id.

         2. Petitioner's Challenge to his Detention

         In his remaining claims, Petitioner asserts that his ongoing detention is unconstitutional as it has become prolonged and he has not received a bond hearing, to which he asserts he is entitled under Diop v. ICE/Homeland Sec, 656 F.3d 221, 231-35 (3d Cir. 2011), and Chavez-Alvarez v. Warden York County Prison,783 F.3d 469 (3d Cir. 2015). The Government, however, contends that those cases are not applicable to this matter as Petitioner is being held as an inadmissible arriving alien, and is thus detained pursuant to 8 U.S.C. § 1225(b)(2)(A) rather than § 1226(a) or (c), which apply to aliens who are to be removed who have previously ...


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