United States District Court, D. New Jersey
L. Linares, Chief Judge
before the Court is the petition for a writ of habeas
corpus of Petitioner, Alasdair Murray McAulay, filed
pursuant to 28 U.S.C. § 2241. (ECF No. 1). Following an
order to answer, the Government filed a response to the
petition, (ECF No. 4), to which Petitioner has replied. (ECF
Nos. 7, 9). For the reasons set forth below, this Court will
deny the petition without prejudice.
Alasdair Murray McAulay, is a native of Cameroon and a
citizen of the United Kingdom who entered this Country as a
visitor in 1991 with permission to remain in the United
States until February 3, 1992. (ECF No. 7-5). Petitioner,
however, chose to remain in the United States long after his
authorization to do so had expired. (Id.). Based on
this overstay, the Government issued Petitioner a notice to
appear and placed him into removal proceedings in October
2007. (Id.). Petitioner was thereafter taken into
immigration custody until he was released on bond in April
2009. (ECF No. 4-1, at 2). Petitioner's removal
proceedings apparently continued thereafter. (Id.).
March 27, 2013, Petitioner was arrested on elder abuse
charges in California. (Id. at 3). Based on that
arrest, and Petitioner's ultimate conviction on those
elder abuse charges in June 2014, immigration authorities
revoked Petitioner's bond and ultimately took him back
into custody upon his release from criminal detention in June
2016. (Id.). On September 15, 2016, Petitioner was
ordered removed by an immigration judge. (Id. at 4).
Petitioner waived his right to appeal his removal order at
that same hearing. (Id.). Petitioner was thereafter
transferred to the Hudson County Correctional Facility in
Kearney, where he has remained while the Government has
sought to remove him to the United Kingdom. (Id.).
September 2016, the Government has submitted several
documents and forms of proof of Petitioner's identity to
the United Kingdom's Consulate and passport office in aid
of the Government's application for a travel document for
Petitioner. (Id. at 4-6). Following an initial
application, the UK's passport office requested a copy of
Petitioner's birth certificate on February 22, 2017,
which the Government agreed to provide. (Id. at 4).
The passport office thereafter requested further documents
from the Government in April and June 2017. (Id. at
5). On June 15, 2017, the Government located Petitioner's
birth certificate, and submitted the birth certificate, as
well as the other requested documents, to the UK passport
office. (Id.). The passport office then informed the
Government that the request for a travel document had been
submitted, and that the Government would be informed once the
UK had made a decision as to whether to issue a travel
document for Petitioner. (Id.). The Government is
apparently prepared to remove Petitioner as soon as a
document is issued.
this removal process has been ongoing, petitioner filed a
motion to reopen his removal hearings in March 2017. That
motion was denied by an immigration judge on April 19, 2017.
(Id.). Petitioner filed an appeal of the denial of
his motion to reopen with the Board of Immigration Appeals on
May 12, 2017. (Id.). Briefing of that appeal
concluded in June 2017, and Petitioner's appeal
apparently remains pending before the BIA at this time.
Neither the BIA nor the immigration judge have ordered a stay
of Petitioner's removal order at this time.
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).
contends that, because of the overlong nature of his
immigration detention, he should be entitled either to a bond
hearing or his outright release. In order to evaluate that
claim, the Court must first determine the statutory basis for
Petitioner's detention. While Petitioner was initially
held, and released on bond, under 8 U.S.C. § 1226(a),
and was eventually held once again under § 1226(c)
following his criminal conviction, an immigration judge
ordered Petitioner removed in September 2016, and Petitioner
waived his right to appeal that removal to the BIA at that
time. Because a removal order becomes administratively final
upon the "waiver of appeal" by the alien following
the entry of a removal order by an immigration judge,
see 8 C.F.R. § 1231.1(b); see also Hlimi v.
Holder, Nos. 13-3210 (KM), 13-3691 (KM), 2013 WL
4500324, at *4 (D.N.J. Aug. 20, 2013), Petitioner was
therefore subject to a final order of removal as of that
date. Because that final removal order has not been vacated,
reopened, or otherwise stayed, Petitioner remains subject to
a final order of removal and his current detention is
governed by 8 U.S.C. § 1231(a). Hlimi, 2013 WL
4500324 at *3-4.
Petitioner is subject to a final order of removal and is
therefore detained under § 1231(a), the propriety of his
detention is controlled by the Supreme Court's decision
in Zadvydas. In Zadvydas, the Supreme Court
observed that § 1231(a) commands the Government to
detain all aliens subject to administratively final orders of
removal during a ninety day statutory removal period. 501
U.S. at 683. The Court also held that the statute does not
limit post-removal order detention to this ninety day period;
instead the Court found that the statute permits the
Government to detain aliens beyond that ninety day period so
long as their detention remains "reasonably
necessary" to effectuate their removal. Id. at
689, 699. Based on these determinations and the Court's
observations regarding the ordinary course of removal
proceedings, the Court in turn determined that an alien may
be detained under § 1231 (a) for a period of up to six
months following his final order of removal during which his
continued detention must be presumed to be reasonable and
therefore constitutionally permissible. Id. at 701.
alien's detention exceeds this presumptively reasonable
six month period, however, does not automatically entitle an
alien to relief from immigration detention. Under
Zadvydas, once the six month period expires, an
alien seeking relief must first present the Court with
"good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable
future.'" Alexander v. Att'y Gen., 495
Fed.Appx. 274, 276 (3d Cir. 2012) (quoting Zadvydas,
533 U.S. at 701). Where an alien meets this initial burden,
the Government can establish its continued authority ...