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, Luis Alonzo Cuellar Manzano, 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
No. 9). For the reasons set forth below, this Court will deny
the petition without prejudice.
Luis Alonzo Cuellar Manzano, is a native and citizen of El
Salvador. (Document 1 attached to ECF No. 4 at 2). Petitioner
first entered the United States some time prior to October
2006. (Id.). On October 19, 2006, however,
Petitioner was taken into immigration custody, since he had
entered the United States illegally. (Id.).
Thereafter, Petitioner received a final removal order in
November 2006, and was ultimately removed from the United
States and returned to El Salvador in December 2006.
(Id.). Apparently, Petitioner thereafter illegally
returned to the United States a month later. (Id.).
two municipal offenses in 2012 and 2015, Petitioner came to
the attention of immigration officials, who issued a
reinstated order of removal against him in April 2016.
(Id. at 3). Based on this reinstated order of
removal, Petitioner was taken back into immigration custody
pending his removal from the United States in May 2017.
(Id.). While in detention in July 2017, Petitioner
expressed a fear of return to El Salvador and sought
withholding of removal to El Salvador. (Id. at 4).
Following further proceedings, an immigration judge denied
Petitioner's requests for withholding of removal on
November 22, 2017. (Id.). Petitioner thereafter
appealed that ruling to the Board of Immigration Appeals
("BIA") on December 6, 2017. (Id. at 5).
It appears that the BIA dismissed Petitioner's appeal.
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 to either a bond
hearing or release. In making said claim, Petitioner contends
that he has been detained pursuant to 8 U.S.C. § 1226,
the statute which applies to those aliens not yet subject to
a final order of removal. Because Petitioner is subject to a
reinstated order of removal, and because the BIA has at any
rate dismissed his appeal from the denial of withholding of
removal, Petitioner is instead subject to a reinstated final
order of removal and has therefore been detained since May
2017 pursuant to 8 U.S.C. § 1231(a). See, e.g., Pina
v. Castille, No. 16-4280, 2017 WL 935163, at *4-9
(D.N.J. Mar. 9, 2017) (a reinstated order of removal is final
notwithstanding an alien's decision to seek withholding
of removal as withholding affects only the country to which
an alien may be removed and does not affect the removal order
to which he is already subject); see also Reyes v.
Lynch, No. 15-442, 2015 WL 5081597, at *2 n. 4-5 (D.
Colo. Aug. 28, 2015). Because Petitioner is subject to a
reinstated 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, 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. 533 U.S. at 683. As the
Zadvydas Court further explained, the statute does
not limit post-removal order detention to this ninety day
period; instead 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 length of removal proceedings, the
Court in Zadvydas held 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.
fact that an alien's detention exceeds this six month
presumptively reasonable period, however, does not
automatically entitle him 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 to detain the alien only if the
Government can rebut his evidence and show that the
alien's removal remains likely in the reasonably
foreseeable future. Id.
matter, Petitioner was taken into immigration custody subject
to a reinstated final order of removal in May 2017.
Petitioner has failed to present the Court with any evidence
indicating that his removal from the United States is
unlikely in the foreseeable future. Indeed, the only thing
that appears to have prevented to Petitioner's removal
since July of last year is Petitioner's having sought
withholding of removal to El Salvador. Given the fact that
Petitioner has previously been removed to El Salvador, and as
it appears that the litigation of Petitioner's
application for withholding has run its course and has not
concluded in his favor, it fully appears that the Government
will be able to remove Petitioner in the near future. As
such, Petitioner has not met even his initial burden under
Zadvydas, as he has not given the Court good reason
to doubt that he can be removed in the reasonably foreseeable
future, and he is therefore not entitled to relief from
immigration detention. His petition shall therefore be denied