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K.A. v. Green

United States District Court, D. New Jersey

November 17, 2017

K.A., Petitioner,
v.
CHARLES GREEN, Respondent.

          OPINION

          JOSE L. LINARS, JUDGE

         Presently before the Court is the petition for a writ of habeas corpus of Petitioner, K.A., filed pursuant to 28 U.S.C. § 2241 (ECF Nos. 1-2). Following an order to answer, the Government filed a response to the petition (ECF No. 5), to which Petitioner replied by filing an emergent motion for a preliminary injunction. (ECF No. 8). The Government thereafter filed a response to that motion. (ECF No. 11). Petitioner has also filed motions to seal the record and an emergent motion for a writ of mandamus (ECF Nos. 13, 15), to which the Government has responded. (ECF Nos. 14, 16). For the following reasons, this Court will deny the petition without prejudice, will deny the emergent motions (ECF Nos. 8, 15), and will grant Petitioner's motion to seal the record (ECF No. 13) only to the extent he requests that he be referred to only by his initials.

         I. BACKGROUND

         Petitioner, K.A., is a native and citizen of Nigeria who entered the United States sometime prior to April 2000. (Document 1 attached to ECF No. 5 at 1). In April 2000, Petitioner was convicted of possession with intent to distribute a controlled substance within 1000 feet of a school and armed robbery in the Superior Court of New Jersey for Essex County. (Id.). Based on that criminal conviction, on August 25, 2008, the Government placed Petitioner into removal proceedings. (Id.).

         During the pendency of those removal proceedings, Petitioner was temporarily released on bond in 2010. (Id. at 2). Petitioner's bond was revoked, however, when he was arrested and placed into criminal custody in April 2011 by the United States Marshals. (Id.). Petitioner remained in criminal custody until January 25, 2017, when he was released into the custody of immigration officials and placed once again into immigration custody following the dismissal of his federal criminal charges.[1] (Id.). While he had been in criminal custody, however, his immigration proceedings had continued, resulting in his being ordered removed by an Immigration Judge in July 2010, the Board of Immigration Appeals ("BIA") dismissing his appeal of that order in May 2012, and the Third Circuit Court of Appeals denying Petitioner's petition for review of his removal order in April 2013. (Id.). Thus, as of May 23, 2012, Petitioner was subject to an administratively final order of removal notwithstanding his then being held on federal criminal charges. (Id.). Petitioner has since filed a motion to reopen his removal proceedings, which remains pending before the BIA at this time. (See Document 14 attached to ECF No. 11 at 3). Petitioner also filed with the BIA a motion for a stay of removal pending a decision on his motion to reopen, but the BIA denied that motion on August 16, 2017. (Id.).

         Upon his being returned to immigration custody, the Government made efforts to secure a travel document for Petitioner from the Nigerian Consulate, ultimately resulting in a travel document being issued and Petitioner being scheduled to be removed from the United States via a chartered flight in August 2017. (Id. at 3-4). On August 25, 2017, however, Petitioner filed petitions for review of the BIA's denial of his stay motion with both the Third and Ninth Circuit Courts of Appeal.[2] (Id.). Although the Third Circuit dismissed the petition for review and denied the motion for a stay outright in October 6, 2017, the Ninth Circuit, pursuant to its rules, issued a temporary stay of removal pending a decision on Petitioner's stay motion in August 2017. (Id.); see also Documents 1 -2 attached to ECF No. 14). On October 11, 2017, however the Ninth Circuit issued a formal order dismissing Petitioner's petition for review for lack of jurisdiction and vacating the temporary stay. (Document 1 attached to ECF No. 14). Petitioner is thus not subject to a stay of removal at this time. (Id.). Petitioner is at this time currently detained once again at the Essex County Correctional Facility and is awaiting the issuance of another travel document. (Document 4 attached to ECF No. 11 at 4).

         II. DISCUSSION

         A. Legal Standard

         Under 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).

         B. Analysis

         1. Petitioner's motion to redact the record shall be granted

         Initially, the Court notes that Petitioner has requested that this Court redact the record of this matter such that he is referred to only by his initials because his motions to reopen before the BIA, which are referenced in this matter, contain sensitive information which could expose him to danger upon his removal from the United States. Petitioner filed a similar motion with the Third Circuit Court of Appeals, which denied a motion to seal his appellate record in its entirety, but "granted [the motion] to the extent that [the] Court will, and all parties are directed to, refer to Petitioner by his initials." (See Document 2 attached to ECF No. 14 at 2). Because Petitioner in his motion to seal asks only that this matter be redacted to only refer to him by his initials, because the Third Circuit has previously granted that same relief under similar circumstances, and because the Government has not opposed that request, this Court will grant Petitioner's request (ECF No. 8) to the extent that Petitioner requests that he be referred to solely by his initials. The Clerk of the Court shall therefore amend the caption of this matter to refer to Petitioner solely by his initials, and the parties shall be directed to refer to Petitioner only by his initials should any further filings be made in this matter.

         2. Petitioner's emergent motion for a preliminary injunction must be denied as moot

         On September 13, 2017, Petitioner filed with this Court an emergent motion for a preliminary injunction and order to show cause in which he argued that, because of the entry of a temporary stay by the Ninth Circuit, he was now detained pursuant to 8 U.S.C. § 1226(c), and that his bond should therefore be reinstated as his detention had become overlong. The fatal flaw in that argument, however, is that it depends entirely on Petitioner being subject to a judicially ordered stay of removal sufficient to render his removal order non-final. While § 1226(c) governs the detention of aliens who have committed certain crimes pending a decision in their removal proceedings, once an alien is subject to a final order of removal, he is instead detained pursuant to 8 U.S.C. § 1231(a). See Leslie v. Att'y Gen.,679 F.3d 265, 268-71 (3d Cir. 2012). A petitioner's detention will only revert to pre-final order status, and thus be governed by § 1226(c), when there is a judicially ordered stay of removal in place or his final order of removal has otherwise been undone. Id. Because the Ninth Circuit vacated its temporary stay of Petitioner's removal, Petitioner is not subject to a stay of removal, but is instead currently subject to a binding final order of removal. He is therefore detained pursuant to 8 U.S.C. § 1231(a), not § ...


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