United States District Court, D. New Jersey
MATEO L. A., Petitioner,
KIRSTJEN M. NIELSON et al., Respondents.
McNULTY. U.S.D J.
petitioner, Mateo L. A.,  is an immigration detainee currently
held at the Bergen County Jail, in Hackensack, New Jersey. On
February 22, 2019, by his counsel, he filed a petition for
writ of habeas corpus under 28 U.S.C. § 2241. Petitioner
explains that he entered the United States in 2001 and was
placed in removal proceedings shortly thereafter. An
immigration judge entered a removal order against petitioner
in absentia on January 3, 2002. Petitioner devotes
the bulk of his petition to arguments that this 2001-02
removal process was improper. (See DE 1.)
2018, petitioner served five months in jail for an old
probation violation. Upon his release on January 4, 2019, he
was detained by Immigration and Customs Enforcement
("ICE") for the purpose of removal from this
country. Although his attorney sought his release, petitioner
alleges that his deportation officer stated that, as he was
subject to a final order of removal, he was not eligible for
release on bond. Petitioner seeks a bond hearing concerning
his detention and an order prohibiting his removal from the
country until a pending motion to reopen is decided by the
Board of Immigration Appeals. (See DE 1 ¶ 23.)
Rule 4 of the Rules Governing § 2254 Cases (applied in
this proceeding under Rule 1(b) of the Rules Governing §
2254 Cases), this Court now examines the petition to
determine whether it should be dismissed as plainly
unmeritorious. Immigration detention after a removal order
has become final is governed by 8 U.S.C. § 1231, which
creates a 90-day removal period during which the government
must detain persons still awaiting removal. 8 U.S.C. §
1231(a)(1)(A), (a)(2); Guerrero-Sanchez v. Warden York
Cty. Prison, 905 F.3d 208, 215 (3d Cir. 2018). Once the
90-day removal period expires, the government may continue to
detain, or may release on bond, aliens who are deportable
based on various specified grounds, under 8 U.S.C. §
1231(a)(6). See Zadvydas v. Davis, 533 U.S. 678,
Supreme Court of the United States, in Zadvydas v.
Davis, 533 U.S. 678, held that § 1231 does not
authorize indefinite post-removal-period detention.
Id. at 689. Instead, such detention is limited
"to a period reasonably necessary to bring about that
alien's removal from the United States."
Id. The Court further noted that six months would be
a "presumptively reasonable" period of
post-removal-order detention under § 1231. Id.
Guerrero-Sanchez v. Warden York County Prison, the
Court of Appeals for the Third Circuit emphasized "that
aliens detained under § 1231(a)(6) are only entitled to
a bond hearing after prolonged detention." 905
F.3d at 225. That Court further adopted a presumptive
"six-month rule," meaning that "an alien
detained under § 1231(a)(6) is generally entitled to a
bond hearing after six months of custody." Id.
at 226 (parenthetical omitted).
Petitioner has been in immigration detention for less than
two months. His detention is well shy of the six-month
duration that will trigger a bond hearing; indeed, his
detention is still within the 90-day period of mandatory
detention created by § 1231.
petitioner is plainly not entitled at this time to a bond
hearing. He may move to reopen this proceeding if he
ultimately remains in immigration custody for a period that
is unduly prolonged under § 1231. Petitioner also seeks
an order barring his removal from this country because his
order of removal is subject to administrative appeal, and
therefore non-final. This Court lacks jurisdiction to review
the propriety of a removal order or to otherwise enjoin
removal. The REAL ID Act so provides:
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of Title 28, or any
other habeas corpus provision, and sections 1361 and 1651 of
such title, a petition for review filed with an appropriate
court of appeals in accordance with this section shall be
the sole and exclusive means for judicial review of an order
of removal entered or issued under any provision of this
chapter, except as provided in subsection (e) of this
section. For purposes of this chapter, in every provision
that limits or eliminates judicial review or jurisdiction to
review, the terms "judicial review" and
"jurisdiction to review" include habeas corpus
review pursuant to section 2241 of Title 28, or any other
habeas corpus provision, sections 1361 and 1651 of such
title, and review pursuant to any other provision of law
(statutory or nonstatutory).
8 U.S.C. § 1252(a)(5) (emphasis added). Accordingly, the
REAL ID Act effectively strips a District Court of
jurisdiction to review a habeas petition challenging an order
of removal. See Urquiaga v. Hendricks, No.
12-cv-2368, 2012 WL 5304206, at *2 (D.N.J. Oct. 25,
2012) (citing Khouzam v. Attorney Gen. of United
States, 549 F.3d 235, 244-45 (3d Cir. 2008));
Jordon v, Attorney Gen. of United States,
424 F.3d 320, 326 (3d Cir. 2005) ("[T]he [REAL ID] Act
expressly eliminated district courts' habeas jurisdiction
over removal orders.").
1252(g) of the REAL ID Act, in conjunction with section
1252(a)(5), quoted above, in effect requires that any such
stay be sought administratively or in the Court of Appeals:
Except as provided in this section and notwithstanding any
other provision of law (statutory or nonstatutory), including
section 2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 [(the All Writs Act)]
of such title, no court shall have jurisdiction to hear any
cause or claim by or on behalf of any alien arising from the
decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders
against any alien under this chapter.
8 U.S.C. § 1252(g). District Courts across the country
have thus found that they are barred from staying removal,
even when the court might otherwise have jurisdiction over
the claims presented. See Fermin v. United States,
No. 17-cv-1862, 2018 WL 623645 (D.N.J. Jan. 29, 2018)
(finding that "any challenge to the validity of that
removal order or a request for a stay of that
Order could be entertained only by the Court of
Appeals"); Vasquez v. United States, No. 15-cv-
3946, 2015 WL 4619805, at * (S.D.N.Y. Aug. 3, 2015)
("District courts within this Circuit and across the
country have routinely held that they lack jurisdiction under
§ 1252 to grant a stay of removal."); see also
Ingram v. Holder, No. 12-cv-390, 2012 WL 1339919 (N.D.
Ala. Apr. 13, 2012); Lage v. Chapdelaine, No.
10-cv-1030, 2010 WL 4688820 (D. Conn. Nov. 10, 2010);
Sanchez v. Florida, No. 09-cv-1223, 2009 WL 1953002
(M.D. Fla. July 6, 2009); Watson v. Stone, No.
13-cv-480, 2013 WL 6072894 (M.D. Ga. Nov. 18, 2013);
Camick v. United States, No. 16-cv-3030, 2016 WL
8943170 (D. Kan. June 7, 2016); Tejada v. Cabral,
424 F.Supp.2d 296 (D. Mass. 2006); Sanchez-Ronquillo v.
Adducci, No. 17-cv-l 1395, 2017 WL 3386318 (E.D. Mich.
Aug. 7, 2017); Cole v. Byam, No. 11-cv-l 15, 2011 WL
1166899 (W.D. Mich. Feb. 25, 2011); Calderon-Rodriguez v.
Terry, No. 12-cv-691, 2013 WL 1897821 (D.N.M. Apr. 30,
2013); Rosales v. Artus, No. 10-cv-2742, 2011 WL
3845906 (E.D.N.Y. Aug. 30, 2011); Eisa v. ICE, No.
08-CV-6204, 2008 WL 4223618 (S.D.N.Y. Sept. 11, 2008);
Adames v. Hinton, No. 16-cv-963, 2016 WL 7386348
(S.D. Ohio); Guzman v. ICE, No. C-06-23, 2006 WL
2345995 (S.D. Tex. Aug. 10, 2006).
foregoing reasons, the habeas petition will be dismissed upon
screening under Rule 4 of the Rules Governing § 2254
Cases (applied to this proceeding under Rule 1 of the Rules