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K.A. v. Green

United States District Court, D. New Jersey

February 27, 2018

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

          OPINION

          JOSE L. LINARES, CHIEF JUDGE

         Presently before the Court is Petitioner K.A.'s motion for reconsideration of this Court's final order denying his petition for a writ of habeas corpus without prejudice brought pursuant to Federal Rule of Civil Procedure 59(e).[1] (ECF No. 20). For the following reasons, the Court will deny the motion.

         I. BACKGROUND

         As this Court previously explained,

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 Petitioner's bond was revoked, however, when he was arrested and placed into criminal custody in April 2011 by the United States Marshals.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.[] (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. [] (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).

(ECF No. 17 at 1-3).

         Based on this factual background, this Court entered an order on November 16, 2017, [2] which granted Petitioner's motion to seal only to the extent that Petitioner would be referred to only by his initials in this matter, and denied Petitioner's habeas petition without prejudice because Petitioner was properly subject to detention pursuant to 8 U.S.C. § 1231(a) and had not shown that he was entitled to relief under the Supreme Court's holding in Zadvydas v. Davis, 533 U.S. 678 (2001). (ECFNo. 18). This Court explained that decision as follows:

[Petitioner argues] that, because of the entry of a temporary stay by the Ninth Circuit, he [is] 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 § 1226(c). . . Petitioner's contention that he is entitled to bond under § 1226(c) is therefore moot insomuch as Petitioner is no longer subject to § 1226(c) detentionf.]
. . . Because Petitioner, for the reasons explained above, is detained pursuant to 8 U.S.C. § 1231(a) insomuch as he is subject to a final order of removal and is not currently subject to a judicially ordered stay of removal, the propriety of his continued detention pending removal from the United States is governed by the Supreme Court's ruling in Zadvydas. In Zadvydas, the Supreme Court observed that § 1231(a) requires the Government to detain all aliens subject to a final order of removal throughout a ninety day statutory removal period. 533 U.S. at 683. The Court further noted that the statute permits the Government to continue to detain an alien after the expiration of the ninety-day period so long as the alien's detention remains "reasonably necessary to effectuate the alien's removal. Id. at 701. Based on this statutory background, the Zad\ydas Court ultimately held that an alien may be detained pursuant to § 1231(a) for a period of up to six months following the onset of his removal period during which his detention will be presumed to be reasonable. Id. at 701.
Pursuant to the statute, the statutory removal period, and in turn the six month presumptively reasonable period, begins on the latest of three possible dates: the date on which the alien's removal order becomes administratively final by the denial of his appeal by the BIA, the date the Court of Appeals issues a final order in those cases where the alien appeals his removal order and seeks and receives a stay of removal ordered by the Court of Appeals, or "[i]f 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. § 1231(a)(1)(B)(i)-(iii). The ninety day removal period, and in turn the six month reasonable detention period, resets upon the occurrence of any of these three events. See, e.g., Trujillo-Acosta v. U.S. Dep't of Homeland Sec., No. 06-4316, 2007 WL 1299442, at *2 (D.N.J. May 2, 2007); Gregory v. B.I.C.E./D.H.S, No. 06-4008, 2007 WL 708856 (Mar. 6, 2007).
In this matter, Petitioner argues that his removal period began upon the issuance of a final order of removal in 2012, and has thus long since expired. Petitioner in turn argues that his release from criminal custody in 2017 did not reset the running of his removal period because he had not been confined pursuant to a judgment of the district court, but rather had been held in pre-trial detention pursuant to his arraignment. Petitioner, however, makes a distinction the relevant statutory text does not. Section 1231(a)(1)(B)(iii) does not require that Petitioner have been convicted and released from prison to reset the running of his removal period. Instead, the statute specifically states that if "[i]f the alien is detained or confined (except under an immigration process), " his removal period will reset on "the date the alien is released from detention or confinement." Id. There is no requirement that the detention arise from a criminal judgment, indeed, the detention need not have been criminal at all. The only relevant statutory requirement is the detention from which the alien was released was not "under an immigration process." Id. In his petition, Petitioner clearly states that he was released from criminal pre-trial detention on January 25, 2017, and placed into immigration detention. Because Petitioner was released into immigration custody from non-immigration detention on that date, § 1231 (a)(1)(B)(iii) mandates that his removal period began to run on that date. Petitioner's six-month presumptively reasonable period thus runs from that date, and expired at the end of June 2017.
Zadvydas, however, does not require that a Petitioner be released from immigration custody merely because the six-month presumptively reasonable period of detention has expired. Instead, where the six-month presumptively reasonable period has passed, an alien will not be entitled to habeas relief unless he can "providef] 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 a habeas petitioner can make this initial showing, the Government may continue to detain him ...

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