United States District Court, D. New Jersey
FRANCISCO P. G., Petitioner,
THOMAS DECKER, ET AL., Respondents.
MCNULTY, UNITED STATES DISTRICT JUDGE
Francisco P. G.,  is an immigration detainee, held at the
Adams County Correctional Facility, in Natchez,
Mississippi. He is proceeding, through counsel, with a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. For the following reasons, the habeas petition
will be denied.
is a native and citizen of the Dominican Republic, who
entered the United States as a lawful permanent resident
("LPR") in 1996 and has resided here since that
time. In January 2015, following a visit to the Dominican
Republic, Petitioner was detained by the Department of
Homeland Security ("DHS") at the John F. Kennedy
airport. DHS detained Petitioner based upon two drug-related
convictions he received in December 2000 and September
2002. Based upon these prior convictions, DHS
determined Petitioner was inadmissible to the United States
and detained him pursuant to 8 U.S.C. § 1225(b) for a
few days before ultimately releasing him. (DE 1-1, at 3.)
Petitioner was subsequently issued a Notice to Appear,
charging him as a removable alien and instituting removal
proceedings against him. On June 12, 2018, Immigrations and
Customs Enforcement ("ICE") again detained
Petitioner. (DE 1-3, at 3.)
December 7, 2018, Petitioner filed a motion to terminate his
removal proceedings based upon DHS' alleged failure to
meet its burden of proof in establishing Petitioner was
inadmissible to the United States. (DE 1-4.) On February 25,
2019, the Immigration Judge ("IJ") denied
Petitioner's motion and entered a non-final order of
removal. In April 2019, Petitioner filed his appeal with the
Board of Immigration Appeals ("BIA").
2019, Petitioner filed this petition for a 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 he
asserted that his detention had become unduly prolonged to
the point of having become unconstitutional under the
decisions of the Court of Appeals for the Third Circuit in
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.
ordered the government to file an answer responding to the
petition. (DE 5.) 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 8, 9.) In October 2019, the government
filed a letter indicating that the BIA had dismissed
Petitioner's appeal from the denial of his application
for cancellation of removal, thereby rendering his removal
order final. As a result, the government stated, Petitioner
is not longer held as a pre-removal detainee pursuant to
§ 1225(b), but rather as a post-removal detainee
awaiting removal, under 8 U.S.C. § 1231. (DE 10.) The
government also stated in their filing that on September 26,
2019, Petitioner had been transferred to Adams County
Correctional Facility in Natchez, Mississippi.
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).
However, where an immigration detainee "properly files a
habeas petition in the district where he is incarcerated, and
the petitioner is subsequently transferred to a facility
outside of that district, the Attorney General of the United
States may be deemed a 'custodian' to allow the
original District Court to retain jurisdiction over the
habeas petition." Chavez-Rivas v. Olsen, 194
F.Supp.2d 368, 376 (D.N.J. 2002); see also Rumsfeld v.
Padilia, 542 U.S. 426, 440-41 (2004). Therefore, even
though Petitioner has since been transferred to a facility in
Mississippi, this Court retains jurisdiction over
Petitioner's § 2241 since he properly filed it while
he was detained in New Jersey. See Chavez-Riveras,
194 F.Supp. At 376.
U.S.C. § 1225(b), detention of an applicant for
admission pending a removal proceeding is practically
mandatory. See Tineo v. Ashcroft, 350 F.3d 382, 387
(3d Cir. 2013). As noted above, Petitioner was detained
pursuant to § 1225(b) at the time 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 from the denial of his
application for cancellation of removal, the removal order
became final and the basis for his custody changed from
§ 1225(b) to § 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, however, the government may continue to
detain, or may release on bond, aliens who are deportable
based on various specified grounds. See 8 U.S.C.
Supreme Court of the United States, in Zadvydas v.
Davis,533 U.S. 678 (2001), 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