United States District Court, D. New Jersey
MCNULTY, UNITED STATES DISTRICT JUDGE.
petitioner, Noah Zhe, is an immigration detainee currently
held at the Essex County Correctional Facility, in Newark,
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 summarily
dismissed without prejudice.
is a native and citizen of China. Petitioner entered the
United States with a K-4 visa in 2003 and resided here since
that time. In 2010, petitioner was convicted of robbery and
kidnapping and began serving a ten-year sentence in South
Woods State Prison, in Bridgeton, New Jersey. Petitioner was
released to the custody of Department of Homeland Security,
Immigration and Customs Enforcement (ICE) on March 17, 2017.
ICE immediately served petitioner with a notice to appear for
immigration proceedings. He has been in immigration custody
since that time.
states that he has conceded his removability throughout the
immigration proceedings. An immigration judge (IJ) ordered
petitioner removed on May 25, 2017. Petitioner does not
state, and it does not otherwise appear, that he has taken
any steps to appeal his removal order. Petitioner does
indicate that he requested release on bail or bond, but that
the ICE regional director denied this request.
filed this habeas petition on September 18, 2017. He seeks,
among other relief, an order granting his immediate release
from immigration detention, with or without bond, or,
alternatively, an order directing that a bond hearing occur
before an IJ.
the filing of a habeas petition, the Court conducts an
initial screening under 28 U.S.C. § 2243, which provides
in relevant part, A court,
justice or judge entertaining an application for a writ of
habeas corpus shall forthwith award the writ or issue an
order directing the respondent to show cause why the writ
should not be granted, unless it appears from the application
that the applicant or person detained is not entitled
Rule 4 of the Rules Governing § 2254 Cases (applied in
this proceeding under Rule 1(b) of the Rules Governing §
2254 Cases), the Court must dismiss a habeas petition
"[i]f it plainly appears from the face of the petition
and any exhibits annexed to it that the petitioner is not
entitled to relief." Rules Governing § 2254 Cases,
Rule 4, 28 U.S.C.A. foil. § 2254; see also
Lonchar v. Thomas, 517 U.S. 314, 320 (1996).
seeks release from immigration detention or a bond hearing
before an IJ based on the length of his detention. (Pet., ECF
No. 1.) Petitioner indicates that his immigration custody
falls under the authorization of 8 U.S.C. § 1226(c).
Under that section, certain criminal aliens are subject to
mandatory pre-removal detention. 8 U.S.C. § 1226(c)(1).
The United States Court of Appeals for the Third Circuit, in
Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir.
2011), held that § 1226(c)" authorizes only
mandatory detention that is reasonable in length, "
after which a detainee would be entitled to a bond hearing.
Id. at 234-35. The Third Circuit subsequently noted
that a continued pre-removal detention under § 1226(c)
without a bond hearing would become constitutionally
problematic at some point after six months of detention, and
certainly within one year. Chavez-Alvarez v. Warden York
Cnty. Prison, 783 F.3d 469, 478 (3d Cir. 2015)
rights of a § 1226(c) detainee, however, are no longer
relevant in this case. Petitioner states that an IJ issued an
order for petitioner's removal on May 25, 2017. (ECF No.
1 at 5.) Under 8 C.F.R. § 1241.1, a removal order
becomes final if the time to appeal it elapses or the party
to be removed waives the right of appeal. See 8
C.F.R. § 1241.1(b)-(c). Nothing suggests that petitioner
appealed his removal order within the 30 days permitted by
immigration regulations. See 8 C.F.R. §
1250.15. Consequently, it appears that his removal order
became final on or around June 24, 2017, thus converting his
custody from a pre-removal detention to a post-removal
detention. This conversion renders moot any assessment of
whether petitioner'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
an aggravated ...