United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE
Sydney T.,  is an immigration detainee, held at the
Essex County Correctional Facility, in Newark, New Jersey. He
is proceeding pro se with a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. For the following
reasons, the initial habeas petition will be denied, but
Petitioner will be permitted an opportunity to file an
is a native and citizen of Jamaica, who entered the United
States as a lawful permanent resident ("LPR") in
1997 and has resided here since that time. In January 2009,
Petitioner was convicted of possession with intent to
distribute marijuana in a school zone, under New Jersey
Statutes Annotated § 2C:35-7. He was also more recently
charged for burglary and larceny, charges which apparently
7, 2016, the Department of Homeland Security, Immigration and
Customs Enforcement, ("ICE") initiated removal
proceedings against petitioner. ICE took Petitioner into
custody under 8 U.S.C. § 1226(c) on November 14, 2016.
Petitioner has remained in immigration custody since that
September 2018, Petitioner filed this petition for writ of
habeas corpus, seeking release or an individualized bond
hearing to justify his continued detention. (DE 1.)
Petitioner did not dispute the statutory basis for his
detention, but asserted that his detention had become unduly
prolonged to the point of having become unconstitutional.
See Diop v. ICE/Homeland Sec, 656 F.3d 221 (3d Cir.
2011), and Chavez-Alvarez v. Warden York County
Prison, 783 F.3d 469 (3d Cir. 2015), among other cases.
(See DE 1.)
ordered the government to file an answer responding to the
petition. (DE 2.) I also ordered the government to notify the
Court within seven days of Petitioner's release from
custody, "as well as any change in the basis for
petitioner's immigration detention." (Id.)
government filed a response to the petition, and Petitioner
filed a reply. (DE 6, 7.) Shortly thereafter, the government
filed a letter indicating that the Board of Immigration
Appeals ("BIA") had dismissed Petitioner's
appeal from the denial of his application for cancellation of
removal, thereby finalizing his removal order and changing
the statutory authority for Petitioner's detention from
§ 1226(c) to 8 U.S.C. § 1231. (DE 8.) From court
records, I note that the Third Circuit stayed
Petitioner's removal pending appeal, but, on March 18,
2019, dismissed that appeal for lack of jurisdiction and
vacated the stay. See Trottman v. Alt 'y Gen. of the
U.S., No. 19-1035 (3d Cir.). Petitioner thereafter filed
a supplemental reply letter, but provided no further updates
as to the status of his immigration custody.
28 U.S.C. § 2241, a district court may exercise
jurisdiction over a habeas petition when the petitioner is in
custody and alleges that this custody violates the
constitution, laws, or treaties of the United States. 28
U.S.C. § 2241(c); Maleng v. Cook, 490 U.S. 488,
490 (1989). A petitioner may seek § 2241 relief only in
the district in which he is in custody. United States v.
Figueroa, 349 Fed.Appx. 727, 730 (3d Cir. 2009). To the
extent that Petitioner alleges that his detention is unlawful
or unconstitutional, this Court has jurisdiction over
Petitioner's claims as he is detained within this
U.S.C. § 1226(c)(1), certain non-citizens with criminal
convictions are subject to mandatory detention while removal
proceedings are pending. See Jennings v. Rodriguez,
138 S.Ct. 830, 846-47 (2018). As noted above, Petitioner was
detained under § 1226(c) when he commenced this
proceeding. Immigration detention after a removal order has
become final, however, is governed by 8 U.S.C. §
1231(a). See Guerrero-Sanchez v. Warden York Cty.
Prison, 905 F.3d 208, 215 (3d Cir. 2018). Thus, when the
BIA dismissed Petitioner's appeal of his denied
application for cancellation of removal, the basis for
Petitioner's custody changed from § 1226(c) to
§ 1231(a). Thereafter, when the Third Circuit granted a
stay of Petitioner's removal, his custody changed back to
§ 1226(c), but, when the Third Circuit vacated that stay
on March 18, 2019, Petitioner's status, once again,
reverted to detention under § 1231(a).
1231(a) 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). 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, 688-89 (2001).
Supreme Court of the United States, in Zadvydas v.
Davis,533 U.S. 678, found 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