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Kabine F. v. Green

United States District Court, D. New Jersey

August 15, 2019

KABINE F., Petitioner,
v.
CHARLES GREEN, et al., Respondents.

          OPINION

          JOHN MICHAEL VAZQUEZ UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On August 9, 2019, the Petitioner, Kabine F., [1] an immigration detainee currently held at Essex County Correctional Facility, in Newark, New Jersey, filed a counseled habeas corpus petition seeking relief pursuant 28 U.S.C. § 2241 in his related habeas case, Kabine F. v. Green, Civ. No. 19-16520 (Petitioner's “First § 2241 Action”). The Court summarily dismissed that petition on August 12, 2019. (See First § 2241 Action at DEs 2 and 3.)

         Petitioner, disagreeing with the manner in which the Court resolved his Petition (see DE 1 at ¶¶ 30-40) - and apparently believing that a motion for reconsideration in his First § 2241 Action, as authorized by L. Civ. R. 7.1(i), was not the appropriate vehicle to air that disagreement - initiated the present stand-alone § 2241 matter on August 13, 2019 via the filing of another habeas petition (the “Petition”) advancing substantially the same claims and arguments raised in his First § 2241 Action. (See, generally, DE 1.) Petitioner, in essence, asserts that the Court's summary dismissal of his First § 2241 Action was flawed because it misstates the legal basis for his current detention, disregards the holdings in two key decisions cited by Petitioner, Castro v. U.S. Dep't of Homeland Sec., 835 F.3d 422 (3d Cit. 2016) and Osario-Martinez v. Att'y Gen. United States of America, 893 F.3d 153 (3d Cir. 2018), and relies on an improper standard of review. For the reasons detailed below, none of these assertions provide a basis to grant Petitioner the habeas relief he seeks nor do they require the Court to reconsider its summary dismissal of the First § 2241 Action. Instead, his present Petition, like his August 9th petition, is summarily dismissed.

         II. BACKGROUND

         The facts underlying Petitioner's present detention, as summarized by the Court in its August 12th dismissal opinion, are clearly established by the record and are not otherwise in dispute. Petitioner is a citizen of Guinea who has resided in the United States since 1987, when he was admitted on a visa, which has long since lapsed. (See DE 1 at ¶¶ 1-2.) Petitioner has been detained by immigration authorities since June 24, 2019 when he attempted to re-enter the United States at John F. Kennedy International Airport using a fraudulent U.S. passport; Petitioner was then returning from a trip abroad to visit his ill father. (Id. at ¶ 3.) The Department of Homeland Security (“DHS”) issued a Notice and Order of Expedited Removal to Petitioner on that same day, finding him inadmissible pursuant to 8 U.S.C. § 1182(6)(C)(ii) (“Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure . . . admission into the United States . . . is inadmissible”) and § 1182(7)(A)(i)(I) (“any immigrant at the time of application for admission . . . who is not in possession of a . . . valid entry document . . . is inadmissible”). (See DE 1-3 at PageID: 41-42.) Petitioner, in response, requested withholding of removal to Guinea under the Convention Against Torture (“CAT”). (See DE 1-2 at PageID: 22.) On July 19, 2019, an asylum officer - after interviewing Petitioner on July 10, 2019 (see DE 1-3 at PageID: 27), and again on July 17, 2019 (see Id. at PageID: 39) - denied Petitioner's request for CAT protection. (See DE 1-2 at PageID: 21.) On July 23, 2019, Immigration Judge (“IJ”) Carrie C. Johnson-Papillo affirmed that denial and referred Petitioner's immigration case back to DHS “for removal of the alien.” (DE 1-1 at PageID: 19-20.)

         Petitioner filed his first habeas petition on August 9, 2019. (See First § 2241 Action at ¶ 1.) The Court, in summarily dismissing that pleading, observed that Petitioner is now detained pursuant to a final order of removal, and thus, his detention is governed by the post-removal statute, 8 U.S.C. § 1231(a). (See First § 2241 Action, DE 2 at 3.) Nothing in Petitioner's current Petition undermines that ruling; indeed, that prior determination likewise supports summary dismissal of Petitioner's present habeas case. Again, § 1231(a)(6) applies to “aliens who[, like Petitioner, ] are inadmissible under 8 U.S.C. § 1182[.]” Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208, 224-25 (3d Cir. 2018). The Court accordingly dismissed the First § 2241 Action as premature because Petitioner's less-than-two-month period of immigration detention was - and is still is - far short of the six months, i.e., the period of § 1231 post-removal-order detention that, in accordance with Zadvydas v. Davis, 533 U.S. 678 (2001) and Guerrero-Sanchez, is presumptively reasonable. (See First § 2241 Action, DE 2 at 3-4.)

         Petitioner's present § 2241 Petition followed on August 13, 2019.[2] Petitioner, by way of that pleading, avers that because his “order of removal was issued under 8 U.S.C. § 1225(b)(1), . . . 8 U.S.C. § 1252(e)(2) governs [this Court's] review of [the propriety of that order].” (DE 1 at ¶ 49.) According to Petitioner, § 1252(e) divests this Court of the ability to meaningfully review the constitutionality of expedited removal orders issued pursuant to § 1225(b)(1), i.e., suspends the privilege of the writ of habeas corpus. (Id. at ¶¶ 48-52.) And because Petitioner, specifically, has developed significant ties to the United States since arriving here in 1987, he is afforded constitutional protections that most aliens subject to expedited removal do not receive. (Id.) Thus, says Petitioner, § 1252(e) is unconstitutional because application of that statute, as applied to him, would violate the Suspension Clause, U.S. Const. art. I, § 9, cl. 2, which states that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” (Id.) Petitioner likewise claims that because he is afforded greater constitutional protections than the typical alien deemed inadmissible under § 1225(b)(1), DHS and the IJ's limited review and cursory denial of his CAT claim deprived him of his due process right to a full and fair hearing. (Id. at ¶¶ 53-54.) In light of these considerations, Petitioner requests only, as he did in his first petition, that the Court order that his removal proceedings be adjudicated in a “regular” - as opposed to an expedited - proceeding. (Id. at PageID: 15-16.)

         III. RELEVANT LEGAL STANDARDS AND ANALYSIS

         Under 28 U.S.C. § 2241(c), habeas relief may be extended to an immigration detainee 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). Under Rule 4 of the Rules Governing § 2254 Cases (the “Habeas Rules”), applicable to this § 2241 proceeding under Habeas Rule 1(b), this Court is presently required to examine the Petition to determine whether it should be dismissed as plainly unmeritorious.

         As noted, Petitioner's now-challenged removal order was issued pursuant to § 1225(b)(1).

         The Third Circuit, in Castro, 835 F.3d 422, detailed “the statutory and regulatory provisions of the expedited removal regime . . . at the heart of this case.” 835 F.3d at 425. In so doing, the court first summarized “§ 1225(b)(1) and its implementing regulations, which lay out the administrative side of the expedited removal regime.” Id.

Under 8 U.S.C. § 1225(b)(1) and its companion regulations, two classes of aliens are subject to expedited removal if an immigration officer determines they are inadmissible due to misrepresentation or lack of immigration papers: (1) aliens “arriving in the United States, ” and (2) aliens “encountered within 14 days of entry without inspection and within 100 air miles of any U.S. international land border.”[3] See 8 U.S.C. § 1225(b)(1)(A)(i) & (iii); Designating Aliens for Expedited Removal, 69 Fed Reg. 48877-01 (Aug. 11, 2004). If an alien falls into one of these two classes, and she indicates to the immigration officer that she fears persecution or torture if returned to her country, the officer “shall refer the alien for an interview by an asylum officer” to determine if she “has a credible fear of persecution [or torture].” 8 U.S.C. § 1225(b)(1)(A)(ii) & (B)(ii); 8 C.F.R. § 208.30(d). The statute defines the term “credible fear of persecution” as “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 1158 of this title.” 8 U.S.C. § 1225(b)(1)(B)(v); see also 8 C.F.R. § 208.30(e)(3) (“An alien will be found to have a credible fear of torture if the alien shows that there is a significant possibility that he or she is eligible for withholding of removal or deferral of removal under [CAT].”).
Should the interviewing asylum officer determine that the alien lacks a credible fear of persecution (i.e., if the officer makes a “negative credible fear determination”), the officer orders the removal of the alien “without further hearing or review, ” except by an IJ as discussed below. 8 U.S.C. § 1225(b)(1)(B)(iii)(I). The officer is then required to “prepare a written record” that must include “a summary of the material facts as stated by the applicant, such additional facts (if any) relied upon by the officer, and the officer's analysis of why, in the light of such facts, the alien has not established a credible fear of persecution.” Id. § 1225(b)(1)(B)(iii)(II). Next, the asylum officer's supervisor reviews and approves the negative credible fear determination, after which the order of removal becomes “final.” 8 C.F.R. § 235.3(b)(7); id. § 208.30(e)(7). Nevertheless, if the alien so requests, she is entitled to have an IJ conduct a de novo review of the officer's negative credible fear determination, and “to be heard and questioned by the [IJ]” as part of this review. 8 U.S.C. § ...

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