United States District Court, D. New Jersey
SUSAN D. WIGENTON, UNITED STATES DISTRICT JUDGE.
before the Court is the petition for a writ of habeas corpus
of Petitioner, Kelan Boyd, filed pursuant to 28 U.S.C. §
2241. (ECF No. 1). Following an order to answer, the
Government filed responses to the petition (ECF No. 4, 6), to
which Petitioner has replied. (ECF Nos. 5, 7). For the
reasons set forth below, this Court will deny the petition
Kelan Boyd, is a native and citizen of Trinidad and Tobago
who entered this country in January 2011 on a non-immigrant
visa granting him authorization to remain in the United
States until July 18, 2011. (Document 1 attached to ECF No. 4
at 2). Petitioner did not depart, however, when his visa
expired. (Id.). Instead, Petitioner remained in the
United States and in November 2012 was convicted of credit
card fraud in Virginia. (Id.). Petitioner was
thereafter placed in removal proceedings, resulting in
Petitioner applying for and being granted an order for
voluntary departure on September 16, 2015. (Id. at
2-3). Pursuant to that Order, Petitioner was to voluntarily
depart the United States by January 14, 2016, and if
Petitioner failed to depart he would automatically be subject
to an alternative removal order. (Id. at 3).
Petitioner chose not to depart, his departure order converted
into a removal order in January 2016, and immigration
officials took him into custody with the intent to have him
removed on February 3, 2016. (Id.). Later that
month, Petitioner filed a motion to reopen his removal order,
which an Immigration Judge denied on March 10, 2016.
(Id.). Petitioner appealed, and the Board of
Immigration Appeals (“BIA”) dismissed his appeal
on June 14, 2016. (Id.). The Government thereafter
sought, and obtained for Petitioner a travel document from
the Consulate of Trinidad and Tobago on August 16, 2016.
(Id.). Before the Government could remove
Petitioner, however, he sought review from the Second Circuit
Court of Appeals. (Id.). The Second Circuit
thereafter dismissed Petitioner's petition for review in
November 2016. (Id.). Petitioner filed multiple
reconsideration motions, but those motions were denied by the
Second Circuit, resulting in a final mandate dismissing his
appeal on January 11, 2017. (Id. at 4).
Petitioner was litigating his reconsideration motions in the
Second Circuit, the Government requested a new travel
document from the Consulate. (Id.). While the
Consulate was apparently compliant and willing to issue a
travel document once again, it could not do so in time to
meet the Government's removal itinerary due to staffing
issues, and Petitioner thus could not be removed prior to
February 2017. (Id.). In February 2017, however,
Petitioner filed a second motion to reopen his removal order
with the BIA, which was denied on March 16, 2017.
(Id.). On April 4, 2017, Petitioner filed with the
Second Circuit another petition for review, which remains
pending at this time. (Id.). Petitioner also filed
with the Second Circuit a motion for a stay of removal
pending the outcome of his petition for review, which also
remains pending at this time. (Id.). Because
Petitioner filed the present motion, and his motion and
petition remain pending in the Second Circuit, he is subject
to the Second Circuit's forbearance policy, and cannot be
removed until his stay motion is decided. (Id.).
While the Government cannot remove Petitioner under the
forbearance agreement until Petitioner's appeal has
concluded, the Government continued to seek a travel document
so that Petitioner could swiftly be removed once his appeal
concludes. (Id.). The Trinidad and Tobago consulate,
however, has informed the Government that it will not provide
a travel document for Petitioner until the Second Circuit
decides his appeal. (Id.).
on his removal proceedings, Petitioner has remained detained
since he was taken into custody in February 2016.
(Id. at 7). Petitioner has sought bond
redeterminations during this time, but in each instance was
denied relief as the Immigration Judge determined that it
lacked jurisdiction to provide Petitioner bond as he is
subject to a final removal order. (Id. at 4).
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).
habeas petition, Petitioner contends that his ongoing
detention violates Due Process and that he is therefore
entitled to a bond hearing pursuant to either the Second
Circuit's ruling in Lora v. Shanahan, 804 F.3d
601 (2d Cir. 2015), or the Third Circuit's rulings in
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
instead contends that Petitioner is currently subject to a
final removal order and is thus properly subject to detention
pursuant to 8 U.S.C. § 1231(a). In order to determine
Petitioner's entitlement to relief, this Court must first
determine the statutory basis for his detention.
matter, Petitioner received an order of voluntary departure
requiring him to leave this Country by mid-January, 2016.
Because Petitioner did not leave the country within the time
set by the voluntary departure order, he became subject to
the alternative removal order, see 8 C.F.R.
1240.26(d), and was therefore subject to an administratively
final removal order at that time. That both the Immigration
Judge and BIA have denied his attempts at appeals of that
removal order likewise firmly establishes that Petitioner is
subject to an administratively final removal order.
See 8 C.F.R. § 1241.1(a) (order of removal
becomes final upon dismissal of appeal by BIA). Once an alien
is subject to an administratively final removal order, his
detention is authorized by 8 U.S.C. § 1231(a) unless and
until the alien seeks judicial review of his removal order
and the requisite court of appeals grants him a stay of
removal. See, e.g., 8 U.S.C. §
1231(a)(1)(B)(ii); Leslie v. Attorney General of the
United States, 678 F.3d 265, 268-70 (3d Cir. 2012);
Brodyak v. Davies, No. 14-4351, 2015 WL 1197535, at
*2 (D.N.J. March 16, 2015). If the alien seeks, and is
granted, a stay by the Court of Appeals, his detention
reverts to pre-final order status, and the alien returns to
detention pursuant to 8 U.S.C. § 1226. Leslie,
678 F.3d at 268-70. “It is the grant of a stay [by the
Court of Appeals, however], and not simply the filing of a
[request or motion] for a stay, which alters an alien's
status.” Brodyak, 2015 WL 1197535, at *2
(citing Leslie, 678 at 268-70).
statutory basis for Petitioner's detention thus turns on
whether or not Petitioner has been granted a stay of removal
by the Court of Appeals. As noted above, although Petitioner
has filed another petition for review with the Second Circuit
and has filed a motion for a stay of removal, the Second
Circuit has not yet ruled upon the motion for a stay.
(See Boyd v. Sessions, Second Circuit Docket No.
17-951 ECF Docket Sheet). Petitioner has thus not formally
been granted a stay of removal by the Court of Appeals.
Petitioner is, however, subject to the forbearance agreement
between the Government and the Second Circuit under which the
Government has agreed not to remove aliens whose removal
orders are subject to review by the Second Circuit until such
time as the Second Circuit has ruled upon those aliens'
requests for stay of removal. See Brodyak, 2015 WL
1197535 at *2 n. 2. The forbearance agreement, however, is
not a court ordered stay, and as numerous courts in this
District have held, it is therefore insufficient to revert a
Petitioner's detention to pre-final order status.
See, e.g., Id.; Jones v. Aviles, No.
15-4819, 2016 WL 3965196, at *3 (D.N.J. July 21, 2016);
Severin v. Aviles, No. 15-3711, 2016 WL 1450550, at
*2 (D.N.J. Apr. 12, ...