United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge.
before the Court is the petition for a writ of habeas corpus
of Petitioner, Rickey S., 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. 8), to
which Petitioner replied. (ECF No. 9). For the reasons set
forth below, this Court will deny the petition without
Rickey S., is a native and citizen of Guyana who first
entered the United States in November 1979 as a legal
permanent resident. (Document 1 attached to ECF No. 8 at 3).
During his time in this country, Petitioner has amassed a
considerable criminal history including convictions for theft
in 1989, aggravated assault in 1991, possession of a firearm
for an unlawful purpose in 1997, and attempted aggravated
assault in 2016. (Id.). Following Petitioner's
release from criminal custody on his 2016 conviction,
Petitioner was taken into immigration custody on June 7,
2017, and served with a notice to appear for removal
proceedings. (Id. at 2). Petitioner has remained
detained since that time.
November 2, 2017, Petitioner was ordered removed by an
immigration judge. (Document 2 attached to ECF No. 8).
Petitioner appealed, and the Board of Immigration Appeals
affirmed the removal order and dismissed his appeal on March
23, 2018. (Document 6 attached to ECF No. 8). On April 6,
2018, however, Petitioner filed a petition for review with
the Third Circuit, accompanied by a motion for a stay of
removal. (Third Circuit Docket No. 18-1773). On April 24,
2018, Petitioner's motion for a stay was temporarily
granted pursuant to a standing order of the Third Circuit
until such time as a merits panel could review the motion.
(Third Circuit Docket No. 18-1773 at Document No.
3112911500). On July 11, 2018, however, the Third Circuit
entered an order which dismissed Petitioner's petition
for review for lack of jurisdiction, vacated the order
granting a temporary stay, and denied Petitioner's motion
for a stay of removal as moot. (Third Circuit Docket No.
18-1773 at Document No. 3112979045).
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).
habeas petition, Petitioner contends that his continued
immigration detention has become overlong. In order to
evaluate the merits of Petitioner's claim, this Court
must first determine the statutory basis for Petitioner's
detention. While § 1226(c), the statute Petitioner
contends controls this matter, 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, 268-72 (3d
Cir. 2012). An alien will only revert to § 1226(c)
detention under such circumstances where he seeks and is
granted a stay of removal by the Court of Appeals.
Id. at 270. Because the Third Circuit has now
vacated the temporary stay Petitioner received, Petitioner is
not subject to a judicially ordered stay, and it is thus
clear that he is currently subject to a final order of
removal. Petitioner's detention is thus governed by 8
U.S.C. § 1231(a).
Petitioner is subject to a final order of removal, any
challenge Petitioner may have had regarding his detention
under § 1226(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 instead detained pursuant to § 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) directs 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
Zadvydas Court thereafter 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 duration of removal proceedings, the
Court 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.
matter, Petitioner received his administratively final order
of removal when the BIA dismissed his appeal on March 23,
2018. However, because Petitioner was subject to a temporary
stay in the Third Circuit his detention pursuant to §
1231(a) and his 90-day removal period did not actually begin
until the Third Circuit vacated the stay and dismissed
Petitioner's petition for review. See 8 U.S.C.
§1231(a)(1)(B)(ii). Petitioner has thus just begun his
removal period, and the Government is required to detain him
for nearly three more months. As Petitioner's detention
pursuant to his final order of removal has not yet crested
six months, his continued detention pursuant to §
1231(a) is presumptively reasonable, and he is not entitled
to habeas relief at this time. Petitioner's petition is