United States District Court, D. New Jersey
CLIVE A. ROSE, Petitioner,
JOHN TSOUKARIS, Respondent.
Susan D. Wigenton, United States District Judge
before the Court is the petition for a writ of habeas corpus
of Petitioner, Clive A. Rose, 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. 5).
Petitioner thereafter filed a supplemental brief (ECF No. 7),
to which the Government responded. (ECF No. 8). Petitioner
thereafter filed a reply. (ECF No. 9). Following an order
from the Court, the Government filed a sur-reply. (ECF No.
12). For the reasons set forth below, this Court will deny
the petition without prejudice.
Clive Rose, is a native and citizen of the United Kingdom who
was originally admitted into the United States in March 1975
as a legal permanent resident. (Document 1 attached to ECF
No. 5 at 4). Following a considerable criminal history
culminating in charges of possession of cocaine with intent
to distribute in 2006, Petitioner was issued a notice to
appear for removal proceedings in June 2014. (Id.).
That notice, however, was not served on Petitioner until
March 2016 as Petitioner had been in state custody at the
time the notice to appear was issued. (Id. at 3;
Document 2 attached to ECF No. 5). Petitioner was thereafter
ordered removed in November 2016, but that removal order was
reversed and remanded by the Board of Immigration Appeals
(“BIA”) in March 2017. (Document 3-4 attached to
ECF No. 5).
Petitioner was litigating his removal proceedings, however,
he filed with a petition for a writ of habeas corpus in this
district arguing that his detention had become prolonged and
therefore violated his Due Process rights. (See
Document 5 attached to ECF No. 5). On April 17, 2017, Judge
Linares granted that petition as the Government did not
oppose the granting of a bond hearing and ordered an
immigration judge to conduct a bond hearing for Petitioner.
(Id.). Following a bond hearing, however, the
immigration judge denied bond as the immigration judge
determined that Petitioner was a flight risk and danger to
the community based on his considerable criminal history.
(Document 6 attached to ECF No. 5). Petitioner appealed that
decision, but the BIA affirmed the denial of bond. (Document
7 attached to ECF No. 5). After immigration officials
determined that Petitioner was now being held pursuant to
their discretionary authority after the granting of
Petitioner's habeas petition, Petitioner was thereafter
provided another bond hearing, but bond was again denied on
May 18, 2017. (Documents 8-9 attached to ECF No. 5).
Petitioner filed a late notice of appeal as to that decision,
and BIA therefore dismissed his attempt to appeal. (Document
11 attached to ECF No. 5). Petitioner thereafter requested a
bond redetermination, but that redetermination was also
denied on October 3, 2017. (Document 10 attached to ECF No.
removal proceedings continued throughout the bond litigation
period. On December 11, 2017, however, an immigration judge
ordered Petitioner removed to the United Kingdom, and denied
Petitioner various other forms of relief including asylum,
withholding of removal, relief under the Convention Against
Torture, and deferral of removal. (Document 12 attached to
ECF No. 5). Petitioner timely appealed. (Document 13 attached
to ECF No. 5). On April 20, 2018, however, the BIA affirmed
the denial of relief and order of removal and dismissed
Petitioner's appeal. (Document 1 attached to ECF No. 12).
Petitioner is therefore now subject to a final order of
removal. It does not appear that Petitioner has filed an
appeal with the Court of Appeals or sought a stay of removal
since April 2018.
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).
his filings, Petitioner contends that he is being held
pursuant to either 8 U.S.C. § 1226(a) or § 1226(c)
and that he should be entitled to either a new bond hearing
or release because his detention has become prolonged and
because he believes that he did not receive all the process
he was due at his various bond and bond redetermination
hearings. Contrary to Plaintiff's assertions, however, he
is no longer detained pursuant to § 1226. While §
1226 governs the detention of aliens such as Petitioner
during their removal proceedings, once an alien has received
a final order of removal, he is no longer subject to §
1226 detention and instead the basis for his detention
becomes 8 U.S.C. § 1231(a). See, e.g., Leslie v.
Att'y Gen., 678 F.3d 265, 268-69 (3d Cir. 2012).
Because Petitioner is subject to a final order of removal
insomuch as he was ordered removed and the BIA affirmed and
dismissed his appeal, and is therefore detained under §
1231(a), any challenge Petitioner may have had regarding his
detention under § 1226(a) or (c) is effectively moot as
he is no longer detained under either subsection of §
1226. See, e.g., Ufele v. Holder, 473 Fed.Appx. 144,
146 (3d Cir. 2012) (entry of final order of removal in the
form of dismissal of appeal by the BIA renders challenges to
pre-final order detention under § 1226 moot). Because
Petitioner is now detained under § 1231(a), he could
only establish that he is entitled to relief from immigration
detention by meeting the requirements set out by the Supreme
Court in Zadvydas.
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. 501 U.S. at 683. The Court then
held that 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 course and length of removal proceedings, the Court
in ultimately determined 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. Even where
an alien's detention exceeds this presumptively
reasonable period, however, the alien does not automatically
become entitled 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 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 received his administratively final order
of removal when the BIA dismissed his appeal on April 20,
2018. As just over a month has passed since the entry of
Petitioner's final order of removal, he is currently
within the ninety day statutory removal period, and the
Government is required to detain him throughout that period
as attempts are made to remove him to his home country. As
Petitioner is still well within the removal period, and is
thus still many months away from exceeding the six month
presumptively reasonable period of detention under §
1231(a), his detention must be presumed to be reasonable and
constitutional. Petitioner is thus not entitled to relief
pursuant to Zadvydas, and his habeas petition must
therefore be denied without prejudice.