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, Shahbaz H., 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. 6).
Petitioner did not file a reply. (ECF Docket Sheet). For the
reasons set forth below, this Court will deny the petition
is a native and citizen of Pakistan who initially entered
this county in 1998 as a non-immigrant visitor. (Document 1
attached to ECF No. 1 at 28). Petitioner remained beyond the
term of his visa without authorization, however.
(Id.). While he remained in this country, Petitioner
was convicted of theft by deception in New Jersey in 2012.
(Id.). Based on this history, Petitioner was taken
into immigration custody in May 2018, and has remained in
immigration detention since that time. (ECF No. 1 at 9). On
September 4, 2018, Petitioner was ordered removed by an
immigration judge. (Id.; see also Document
1 attached to ECF No. 6 at 1). Petitioner did not appeal, and
he therefore became subject to a final order of removal a
month later in October 2018. (Document 1 attached to ECF No.
6 at 1). Petitioner has been detained pursuant to 8 U.S.C.
§ 1231(a) since that time. (Id.). On April 18,
2019, Petitioner was brought before an immigration judge for
a bond hearing pursuant to the Third Circuit's decision
in Guerrero-Sanchez v. Warden York County Prison,
905 F.3d 208 (3d Cir. 2018). (Document 2 attached to ECF No.
6 at 1, 3). Following that hearing, Petitioner was denied
bond as the immigration judge found Petitioner was a flight
risk. (Id.). Petitioner does not appear to have
appealed that decision to the Board of Immigration Appeals.
(ECF No. 6 at 1-2). Ten days later, on April 28, 2019, the
Pakistani Consulate issued a travel document for Petitioner
so that he could be removed back to Pakistan. (Document 3
attached to ECF No. 6 at 1-2).
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 and that he should
therefore either receive a bond hearing or be released. In
order to evaluate the merits of Petitioner's claim, this
Court must first determine the statutory basis for
Petitioner's detention. In his habeas petition,
Petitioner appears to contend that his detention arises out
of either 8 U.S.C. § 1226(c) or 8 U.S.C. § 1231(a).
Because Petitioner is subject to an administratively final
order of removal and does not appear to dispute that fact,
his detention arises out of § 1231(a), which applies to
post-final order detention, and not § 1226(c). See,
e.g., Leslie v. Att'y Gen., 678 F.3d 265, 268-72 (3d
Cir. 2012). Because Petitioner is subject to a final order of
removal and is now detained pursuant to § 1231(a), any
challenge Petitioner may have had regarding his previous
detention under § 1226(c) is effectively moot as he is
no longer detained under § 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).
Petitioner is currently detained pursuant to § 1231(a),
has already received the bond hearing to which he was
entitled under Guerrero-Sanchez, and has not argued
that his Guerrero-Sanchez hearing was in any way
deficient, he would only be entitled to relief from his
current immigration detention if he could establish that he
is entitled to release under Zadvydas. In
Zadvydas, the Supreme Court observed that §
1231(a) requires 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 further 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 presumptive
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 has failed to show that there is good
reason to believe that there is no significant likelihood of
his removal to Pakistan in the reasonably foreseeable future.
Instead, the record indicates that Pakistan has issued a
travel document which would permit Petitioner's removal
to Pakistan, and Petitioner has failed to present any
argument or information which indicates that his removal is
not likely to occur now that a travel document has been
issued. Because Petitioner has failed to show that his
removal is unlikely in the reasonably foreseeable future, and
as the facts of this matter instead suggest that
Petitioner's removal is imminent insomuch as he has
received a travel document and there appears to be no further
impediment to his removal, Petitioner has failed to show that
he is entitled to relief under Zadvydas. As
Petitioner has already received the bond hearing he was due
under Guerrero-Sanchez, and as Petitioner has failed
to show his entitlement to relief under Zadvydas,
Petitioner's habeas petition is denied.
reasons expressed above, this Court denies Petitioner's
habeas petition (ECF No. 1) without ...