United States District Court, D. New Jersey
STANLEY R. CHESLER, UNITED STATES DISTRICT JUDGE.
matter has been opened to the Court by Petitioner's
filing of a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241, challenging his prolonged detention. For
the reasons explained in this Memorandum Opinion, the Court
will deny the petition without prejudice to Petitioner's
filing of a new petition to the extent he can show that there
is no significant likelihood of his removal in the reasonably
foreseeable future and that he is cooperating with the
Department of Homeland Security in obtaining necessary travel
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
factual background is taken from Respondent's answer to
the Petition, to which Petitioner has not responded.
Petitioner, a native and citizen of Peru, was admitted to the
United States on April 27, 1989 as a lawful permanent
resident. (See Exhibit B - Oral Decision of the
Immigration Judge, dated July 19, 2016 at 1-2.3) This is the
second removal proceeding involving the Petitioner.
(See Exhibit C - Memorandum of the Court's
Decision.) On October 7, 2014, Petitioner was granted
cancellation of removal in the prior removal proceeding.
(Id.) Subsequent to the grant of cancellation of
removal in October 2014, Petitioner was convicted of two
additional shoplifting/theft related offenses on December 1,
2014 and May 22, 2015, respectively. (See Exhibit D
- Notice to Appear at 3-4.4)
August 2015, the Department of Homeland Security
("DHS") issued a Notice to Appear charging
Petitioner with removability pursuant to section
237(a)(2)(A)(ii) of the IN A; 8 U.S.C. §
1227(a)(2)(A)(ii), as well as a Warrant for Arrest of Alien
which was executed on December 14, 2015. (See
Exhibit D - Notice to Appear; see also Exhibit E -
Warrant for Arrest of Alien.) Upon execution of the warrant,
DHS took Petitioner into mandatory custody pursuant to
Section 236(c) of the INA, 8 U.S.C. § 1226(c).
(See Exhibit F - Notice of Custody Determination.)
Petitioner appealed the determination and, on December 29,
2015, Immigration Judge Dorothy Harbeck issued an order
taking "no action" on Petitioner's request for
a change in custody. (See Exhibit G - Order of the
Immigration Judge with Respect to Custody.)
19, 2016, Petitioner appeared at a merits hearing pro se, and
admitted his convictions for two shoplifting/theft offenses
on December 1, 2014 and May 22, 2015 respectively.
(See Exhibit A, at 1-3.) Petitioner also
acknowledged he was previously granted cancellation of
removal in an earlier removal proceeding. (Id.)
Immigration Judge Daniel A. Morris denied the application for
cancellation of removal and ordered Petitioner removed to
Peru. (Id.) Petitioner filed a timely appeal with
the Board, which was dismissed on November 4, 2016.
(See Exhibit A- Decision of the Board.) On December
5, 2016, Petitioner filed a petition for review with the
United States Court of Appeals for the Third Circuit, but did
not initially seek a stay of removal. See Ugarte v.
Attorney General, No. 16-4255 (3d Cir. 2016).
filed this habeas action on February 28, 2017. (ECF No. 1).
On March 8, 2017, the Court directed Respondent to answer the
petition. (ECF No. 2.) On April 24, 2017, the government
filed its Answer. (ECF No. 3.) Petitioner did file a reply or
otherwise respond to the government's arguments.
5, 2017, the Third Circuit denied Petitioner's petition
for review. (See Id. at Dkt. Nos. 3-4.) In denying
the petition for review, the Third Circuit found that
Petitioner's prior grant of cancellation rendered him
statutorily ineligible to be granted cancellation again.
(Id. at Dkt. No. 3, at 2 (citing 8 U.S.C. §
1229b(c)(6); Taveras v. Att'y Gen., 731 F.3d
281, 283 n.2 (3d Cir. 2013).) It also rejected Plaintiffs
sole ground for relief- that Petitioner would have applied
for a type of relief other than cancellation if the
immigration judge had informed him that he was ineligible for
cancellation of removal - for lack of jurisdiction, as
Petitioner did not raise this issue below. (Id. at
4.) On June 22, 2017, Petitioner filed a motion for a stay of
removal with the Third Circuit, which was denied on July 5,
2017. (Id. at Dkt. Nos. 5-6.) Petitioner
subsequently sought reconsideration of the July 5, 2017 Order
denying the stay, which was denied on July 21, 2017.
(Id. at Dkt. Nos. 7-8.) On July 27, 2017, the Third
Circuit issued its Mandate. (Id. at Dkt. No. 9.)
is currently subject to a final order of removal and his
detention is governed by section 241(a)(1)(C) of the
Immigration and Naturalization Act ("INA"), 8
U.S.C. § 1231 (a)(1)(C) (concerning post removal order
detention). Section 1231 (a) requires the Government to
detain an alien during the ninety-day removal period
following a final order of removal. 8 U.S.C. §
1231(a)(2); Zadvydas v. Davis, 533 U.S. 678, 683 (2001).
Removable aliens may be detained beyond that ninety-day
period as long as "reasonably necessary" to
effectuate the alien's removal. Zadvydas, 533
U.S. at 689, 699. In Zadvydas v. Davis, the Supreme
Court established a period of six months from the date the
order of removal becomes final as a presumptively reasonable
time in which to effectuate an alien's removal.
Id. at 701. Under 8 U.S.C. § 1231(a)(1)(B)
"[t]he removal period begins on the latest of the
following: (i) The date the order of removal becomes
administratively final[;] (ii) If the removal order is
judicially reviewed and if a court orders a stay of the
removal of the alien, the date of the court's final
order[;] (iii) If the alien is detained or confined (except
under an immigration process), the date the alien is released
from detention or confinement. 8 U.S.C.A. § 1231 (West).
After the six month period has elapsed, the alien must show
that there is "no significant likelihood of removal in
the reasonably foreseeable future" in order to merit
habeas relief. See Id. If the alien makes such a
showing, the Government "must respond with evidence
sufficient to rebut that showing." Id. As
explained by the Supreme Court, "[t]his 6-month
presumption, of course, does not mean that every alien not
removed must be released after six months. To the contrary,
an alien may be held in confinement until it has been
determined that there is no significant likelihood of removal
in the reasonably foreseeable future." Id. See also
Concepcion v. Aviles, No. CIV.A. 15-2053 SDW, 2015 WL
3794776, at *3 (D.N.J. June 17, 2015).
custody in post order detention began on November 4, 2016,
when the Board of Immigration Appeals ("Board")
dismissed his administrative appeal. (See Exhibit A
- Board Order.) Because the Third Circuit did not enter a
stay of removal during the pendency of Petitioner's
appeal, it appears that Petitioner remained under a final
order of removal while his petition for review was pending.
Petitioner has now been in post order detention for slightly
over a year, the Petition in this case does not address
whether there exists a "significant likelihood of
removal in the reasonably foreseeable future."
Petitioner thus fails to meet his initial burden of proof
under Zadvydas, and he has not filed a reply
addressing the likelihood of his removal.
Respondent states in the answer that Petitioner has refused
to cooperate in obtaining travel documents from Peru
(see Declaration of DO Cody; see also Exhibit I
-Warning for Failure to Depart), and Petitioner has not
replied to this allegation. Respondent argues that
Petitioner's failure to comply with 8 U.S.C. §
1231(a)(1)(C) to "make timely application in good faith
to obtain travel... documents" effectively results in a
tolling of the presumptively reasonable period enunciated in
Zadvydas. Numerous courts in this District have held
that a detainee's failure to cooperate in obtaining
travel documents precludes a finding that his or her removal
is not reasonably foreseeable. See Conceicao v.
Holder, No. 12-4668, 2013 WL 1121373, at *3 (D.N.J.
Mar.13, 2013) ("[W]here Petitioner is refusing to sign
the necessary travel documents, he has failed to cooperate in
his removal and has failed, in this Court, to establish that
there is no likelihood of his removal in the reasonably
foreseeable future ."); Diaz-Martin v. Holder,
No. 11-6692, 2012 WL 4661479, at *4-5 (D.N.J. Oct. 2, 2012)
(finding that where petitioner failed to cooperate in his
removal, he failed to establish that there is no ...