United States District Court, D. New Jersey
Abdalla Iddrisu (“Petitioner”) is currently being
detained by the Department of Homeland Security, Immigration
and Customs Enforcement (“DHS/ICE”) at the Essex
County Correctional Facility in Newark, New Jersey. On
January 18, 2017, Petitioner filed the instant Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2241,
challenging his detention pending removal. (D.E. No. 1,
Petition (“Pet”)). For the reasons stated below,
the Court will DISMISS the Petition.
is a native and citizen of Ghana. (D.E. No. 5,
Respondent's Answer (“Answer”), Exhibit A,
Declaration of Deportation Officer Michael A. Rivera
(“Rivera Decl.”) ¶ 3). Petitioner applied
for admission into the United States on March 10, 2016, at
the San Ysidro Port of Entry. (Id.). He did not
possess valid, legal entry documents, so he was found to be
inadmissible into the United States under section
212(a)(7)(A)(i)(I) of the Immigration and Nationality Act
(“INA”). (Id. at ¶ 5). On March 15,
2016, he was transferred into ICE custody. (Id. at
March 28, 2016, ICE served Petitioner with a Notice to Appear
(“NTA”) in immigration court, initiating his
removal proceedings. (Id. ¶ 7). The NTA charged
Petitioner with removability based on his lack of valid entry
documents at the time he applied for admission to the United
States. (Id.). On August 4, 2016, the Immigration
Judge sustained the charges against Petitioner, denied his
applications for withholding and other related relief, and
ordered him removed to Ghana. (Id. ¶ 8).
Petitioner appealed the Immigration Judge's decision to
the Board of Immigration Appeals (“BIA”).
(Id. ¶ 9). On February 2, 2017, the BIA
affirmed the Immigration Judge's decision and dismissed
Petitioner's appeal. (Id.). On February 17,
2017, Petitioner filed a petition for review of the BIA's
dismissal of his appeal with the Third Circuit Court of
Appeals, along with a motion for a stay of removal.
Iddrisu v. Attorney General, No. 17-1416 (3d. Cir.
2017). On April 28, 2017, the Third Circuit denied
Petitioner's request for a stay of removal and on June
22, 2017, the Third Circuit dismissed his appeal.
Petition before this Court, which he filed on January 18,
2017, after the immigration judge ordered him removed and
before the BIA dismissed his appeal, Petitioner argues that
as an “arriving alien” detained under §
1225, his prolonged detention violates his due process
rights. (D.E. No. 1).
28 U.S.C. § 2241(c), habeas relief “shall not
extend to a prisoner unless . . . [h]e 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 subject matter jurisdiction under § 2241(c)(3)
if two requirements are satisfied: (1) the petitioner is
“in custody, ” and (2) the custody is alleged to
be “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
Court has subject matter jurisdiction over this Petition
under § 2241, because Petitioner (1) was detained within
its jurisdiction, by a custodian within its jurisdiction, at
the time he filed his Petition, see Spencer v.
Lemna, 523 U.S. 1, 7 (1998) and Braden v. 30th
Judicial Circuit Court, 410 U.S. 484, 495, 500 (1973);
and (2) asserts that his detention is not statutorily
authorized, see Zadvydas v. Davis, 533 U.S. 678, 699
(2001); Chavez-Alvarez v. Warden York Cnty. Prison,
783 F.3d 469 (3d Cir. 2015); Diop v. ICE/Homeland
Sec., 656 F.3d 221, 234 (3d Cir. 2011).
outset, the Court must determine under which statute
Petitioner is currently detained. It appears that Petitioner
was initially detained under 8 U.S.C. § 1225 because he
was an arriving alien without valid entry documents.
See 8 U.S.C. § 1225(b)(2)(A). However, the
basis for Petitioner's custody then shifted to 8 U.S.C.
§ 1231, the post-removal-order statute, on February 2,
2017, when the BIA dismissed his appeal and his removal order
became final. See 8 C.F.R. § 1241.1(a)
(“[a]n order of removal made by the immigration judge
at the conclusion of proceedings . . . shall become final . .
. [u]pon dismissal of an appeal by the Board of Immigration
8, United States Code, Section 1231(a)(1)(A) states that,
“except as otherwise provided in this section, when an
alien is ordered removed, the Attorney General shall remove
the alien from the United States within a period of 90 days
(in this section referred to as the ...