United States District Court, D. New Jersey
McNULTY UNITED STATES DISTRICT JUDGE
Jocelyn Lezin, is an immigration detainee currently held at
the Elizabeth Detention Center in Elizabeth, New Jersey. He
is proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. For the following
reasons, the habeas petition will be denied without
Lezin is a native and citizen of Haiti. He entered the United
States in February 1988, and has resided here since that
time, becoming a lawful permanent resident in 2000.
Thereafter, between 2007 and 2008, Mr. Lezin was convicted
twice in New Jersey of controlled-dangerous-substance
offenses. On August 22, 2014, Mr. Lezin attempted to reenter
the United States at John F. Kennedy International Airport.
Customs and Border Protection ("CBP") deemed him
inadmissible and issued him a notice to appear for an
immigration hearing, but released Mr. Lezin on his own
30, 2015, Mr. Lezin conceded his removability before an
immigration judge ("IJ"). Mr. Lezin failed to
appear for a subsequent immigration hearing, and Department
of Homeland Security, Immigration and Customs Enforcement
("ICE") arrested him on May 19, 2016. Mr. Lezin has
been in immigration detention since that time. An IJ ordered
Mr. Lezin removed on April 14, 2017, and Mr. Lezin appealed
this decision to the Board of Immigration Appeals
on April 10, 2017, Mr. Lezin filed this habeas petition. He
seeks an order granting his immediate release from
immigration detention or, alternatively, directing that a
bond hearing take place before an IJ. Respondent filed a
response in opposition to the habeas petition, arguing that
Mr. Lezin was not entitled to a bond hearing, because he was
detained under 8 U.S.C. § 1225(b). Mr. Lezin has filed
September 1, 2017, respondent notified the Court that the BIA
had dismissed Mr. Lezin's appeal on August 15, 2017 and
that Mr. Lezin had not filed a petition for review by the
United States Court of Appeals for the Third Circuit.
Respondent asserts that this converted Mr. Lezin's
detention from pre-removal to post-removal status, restarting
the clock and rendering his habeas petition premature. (ECF
Lezin seeks release from immigration detention or a bond
hearing before an IJ based on the length of his detention.
(Pet., ECF No. 1.) Based on his prior convictions and the
fact that he was originally issued a notice to appear for
immigration proceedings when he was attempting to enter the
country, ICE detained Mr. Lezin as an applicant for admission
under 8 U.S.C. § 1225(b). See Tineo v. Ashcroft,
350 F.3d 382, 388-96 (3d Cir. 2003).
of an applicant for admission pending a removal proceeding is
practically mandatory. See Id. at 387. Controlling
statutes and regulations do not provide for bond hearings
concerning persons detained under § 1225(b).
See 8 C.F.R. §§ 235.3(c),
1003.19(h)(2)(i)(B).The rights of a § 1225(b) detainee,
however, are no longer relevant in this case. The BIA's
dismissal of Mr. Lezin's appeal converted his detention
from pre- to post-removal. See Id. § 1241.1(a).
This conversion renders moot any assessment of whether Mr.
Lezin's detention warrants pre-removal habeas relief.
See Rodney v. Mukasey, 340 Fed.Appx. 761, 764 (3d
Cir. 2009); Quezada v. Hendricks, 821 F.Supp.2d 702,
708 (D.N.J. 2011).
immigration detention is governed by 8 U.S.C. § 1231,
which creates a ninety-day removal period during which the
government must detain aliens still awaiting
removal. 8 U.S.C. § 1231(a)(1)(A), (a)(2).
Once the ninety-day removal period expires, the government
may continue to detain, or may release on bond, aliens who
are deportable based on various specified grounds, including
conviction of controlled-substance offenses. Id.
§ 1231(a)(6); see also 8 U.S.C. §
1227(a)(2)(B); Zadvydas v. Davis, 533 U.S. 678,
Supreme Court of the United States, in Zadvydas v.
Davis, 533 U.S. 678, found that § 1231 does not
authorize indefinite post-removal-period detention.
Id. at 689. Instead, such detention is limited
"to a period reasonably necessary to bring about that
alien's removal from the United States."
Id. The Court further noted that six months would be
a "presumptively reasonable" period of post-removal
detention under § 1231. Id. at 701.
discussed above, Mr. Lezin entered the ninety-day removal
period on August 15, 2017 when the BIA dismissed his appeal,
thus finalizing his removal order. (See Letter from
Bryan Lonegan (Sept. 1, 2017), Ex., ECF No. 5-1.)
Accordingly, the ninety-day removal period, during which
detention is mandatory, does not conclude until November 13,
2017. Mr. Lezin's post-removal detention is also still
well within the six-month period found presumptively
reasonable by the Zadvydas Court Therefore, to the
extent that Mr. Lezin might wish the Court to construe his
petition as a challenge to his recently commenced
post-removal detention, such a challenge would be premature.
See Rodney, 340 Fed.Appx. at 764-65; Lemits
Rivas v. Green, Civ. A. No. 16-4195 (JMV), 2016 WL
8674267, at *2 (D.N.J. Dec. 2, 2016); Mullings
v. Aviles, Civ. A. ...