United States District Court, D. New Jersey
L. LINARS, JUDGE
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.
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
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Petitioner's bond was revoked, however, when he was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. (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.).
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. (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).
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).
Petitioner's motion to redact the record shall be
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.
Petitioner's emergent motion for a preliminary injunction
must be denied as moot
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 § ...