United States District Court, D. New Jersey
L. LINARES, JUDGE
before the Court is the petition for a writ of habeas corpus
of Petitioner, Yevheni K., filed pursuant to 28 U.S.C. §
2241. (ECF No. 1). Following an Order to answer, the
Government filed responses to the petition, (ECF Nos. 4, 8),
to which the Petitioner replied. (ECF No. 6). For the
following reasons, the petition is denied without prejudice.
is a native and citizen of Ukraine who became a lawful
pemianent resident of die United States in January 2013. (ECF
No. 4-2 at 2). In September 2016, Petitioner was convicted of
criminal possession of stolen property in New York. (ECF No.
4-2 at 2). Based on that conviction, Petitioner was taken
into immigration custody and placed in removal proceedings on
or about January 3, 2018. (ECF No. 4-2 at 3). On July 10,
2018, Petitioner was ordered removed by an immigration judge.
(ECF No. 4-1 at 2). Petitioner appealed, and the Board of
Immigration Appeals ("BIA") ultimately dismissed
his appeal and rendered his removal order final on December
18, 2018. (ECF No. 8-1). Petitioner thereafter filed a
petition for review with the Second Circuit. Docket Sheet,
No. 19-8 (2d Cir., filed Jan. 3, 2019). Although Petitioner
has also filed a motion for a stay of removal in the Second
Circuit, Petitioner has not at this time received a
judicially ordered stay of removal. Docket Sheet, No. 19-8
(2d Cir., filed Jan. 3, 2019).
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. Kemmi,
523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit
Court of Ky., 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
detention pending his removal without a bond hearing violates
Due Process. In order to evaluate this claim, this Court must
determine the statutory basis for Petitioner's current
detention. Because Petitioner is now subject to an
administratively final order of removal as the BIA dismissed
his appeal, he is subject to detention under 8 U.S.C. §
1231(a) unless and until "a court orders a stay" of
that removal order. Leslie v. Attorney Gen., 678
F.3d 265, 268-70 (3d Cir. 2012), abrogated in part on
other grounds by Jennings v. Rodriguez, 138 S.Ct. 830,
847 (2018); see also 8 U.S.C. § 1231(a)(1)(B).
Although Petitioner has sought a stay from the Second
Circuit, no court has ordered a stay of removal, and
Petitioner is therefore subject to detention under §
Supreme Court has recently reiterated,
Under [§ 1231(a)], when an alien is ordered removed, the
Attorney General is directed to complete removal within a
period of 90 days, 8 U.S.C. § 1231 (a)(1)(A), and the
alien must be detained during that period, § 1231(a)(2).
After that time elapses, however, § 1231(a)(6) provides
only that aliens "may be detained" while
efforts to complete removal continue. (Emphasis added.)
In Zadvydas, the [Supreme] Court construed §
1231(a)(6) to mean that an alien who has been ordered removed
may not be detained beyond "a period reasonable
necessary to secure removal," 533 U.S. at 699, . . . and
it further held that six months is a presumptively reasonable
period, id. at 701... . After that, the Court
concluded, if the alien "provides good reason to believe
that there is no significant likelihood of removal in the
reasonably foreseeable future," the Government must
either rebut that showing or release the alien.
Jennings, 138 S.Ct. at 843. Pursuant to
Zadvydas, any challenge to § 1231(a) detention
by an alien who has been detained pursuant to § 1231(a)
for less than six months must be dismissed as prematurely
filed. Id.; Zadvydas, 533 U.S. at 701. Although the
Third Circuit has expanded the avenues for relief available
to an alien whose detention under § 1231(a) has become
prolonged, the Third Circuit, too, has recognized that such
challenges may not be brought until the alien has been held
under § 1231(a) for at least six months. See
Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d
208, 225-26 (3d Cir. 2018).
matter, Petitioner has been subject to a final order of
removal, and thus held pursuant to § 1231(a), for just
over three months. He is therefore still within the six-month
period during which this Court is required to presume that
his post-final order detention is reasonable and
constitutionally valid. Zadvydas, 533 U.S. at 701;
Guerrero-Sanchez, 905 F.3d at 225-26.
habeas petition is thus premature- his continued detention
under § 1231(a) is presumptively valid ...