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K.A. v. Green

United States District Court, D. New Jersey

August 7, 2018

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

          OPINION

          JOSE L. LINARES CHIEF JUDGE, UNITED STATES DISTRICT COURT

         Presently before the Court is the petition for a writ of habeas corpus of Petitioner K.A. (ECF No.1), as well as Petitioner's motion to seal this matter. (ECF No. 8). Following an order to answer, the Government filed a response to the habeas petition (ECF No. 4), to which Petitioner has replied. (ECF No. 7). For the following reasons, this Court will grant Petitioner's motion to seal only to the extent that the parties and Clerk of Court shall be instructed to refer to Petitioner strictly by his initials, and will grant the petition.

         I. BACKGROUND

         This Court recounted the history of Petitioner's immigration proceedings as follows in its opinion denying Petitioner's previous habeas petition:

Petitioner, K.A., is a native and citizen of Nigeria who entered the United States sometime prior to April 2000. 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. Based on that criminal conviction, on August 25, 2008, the Government placed Petitioner into removal proceedings.
During the pendency of those removal proceedings, Petitioner was temporarily released on bond in 2010. Petitioner's bond was revoked, however, when he was arrested and placed into criminal custody in April 2011 by the United States Marshals. 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.[] 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. 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. Petitioner has since filed a motion to reopen his removal proceedings[.] 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.
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. 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.[] 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. 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.

K.A. v. Green, No. 17-3542, 2017 WL 5513685, at *l-2 (D.N.J. Nov. 16, 2017) (citations omitted).

         On November 22, 2017, Petitioner's motion to reopen his removal proceedings was denied by the BIA. (ECF No. 5-14 at 2). Petitioner thereafter filed a petition for review with the Third Circuit Court of Appeals. (Third Circuit Docket No. 17-3640 Docket Sheet). Petitioner also filed a motion for a stay of removal. (Id.). On December 18, 2017, the Third Circuit granted Petitioner's motion to stay removal and appointed counsel to represent Petitioner in his petition for review. (Id.). Since that time, it does not appear that any movement has occurred before the Third Circuit, and it appears that no filings have been made since the grant of the stay in December 2017. (Id.). In addition to his habeas proceedings in this Court, Petitioner also filed a habeas petition in the District of Arizona while he was briefly in that state while the Government was preparing to remove him in August 2017. (See Document 1 attached to ECF No. 11). That petition, however, was denied on June 22, 2018. (Id.).

         II. DISCUSSION

         A. Legal Standard

         Under 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).

         B. Analysis

         1. Petitioner's Motion to Seal the Record Shall be Granted Only to the Extent Petitioner Requests ...


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