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Iddrisu v. Green

United States District Court, D. New Jersey

September 19, 2017

ABDALLA IDDRISU, Petitioner,
v.
CHARLES L. GREEN, Respondent.

         Not for Publication

          OPINION

          ESTHER SALAS, U.S.D.J.

         Petitioner 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.

         I. BACKGROUND

         Petitioner 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 ¶ 6).

         On 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. (Id.).

         In his 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).

         II. DISCUSSION

         A. Legal Standard

         Under 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 (1989).

         The 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).

         B. Analysis

         At the 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 Appeals”).

         Title 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 ...


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