United States District Court, D. New Jersey
STANLEY R. CHESTER, UNITED STATES DISTRICT JUDGE
before the Court is the petition for a writ of habeas corpus
of Petitioner, Fernanda J., filed pursuant to 28u.s.c.
§2241. (ECF No. 1). Following an order to answer, the
Government filed a response to the petition (ECF No. 11).
Petitioner did not file a reply. For the following reasons,
this Court will dismiss the habeas petition without
is a native and citizen of Brazil who was found to lack a
valid visa or other valid basis for legal entry into the
United States when she attempted to enter this
country. (Document 1 attached to ECF No. 11 at 3).
On October 30, 2018, Petitioner was served with a notice to
appear which charged her with being removable from the United
States as she was an arriving alien who lacked valid
authorization to enter the United States. (Id.).
Following several hearings, Petitioner was ordered removed to
Brazil in March 2019, (Document 2 attached to ECF No. 11). In
April 2019, Petitioner appealed to the Board of Immigration
Appeals (Document 4 attached to ECF No. 11 at 2). The BIA
dismissed her appeal on September 5, 2019. (Id.). It
does not appear Petitioner sought further review in the Court
of Appeals, and the record therefore suggests that Petitioner
became subject to an administratively final order of removal
as of September 5, 2019. (Id.).
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. Kenma,
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 argues that her continued
immigration detention in the absence of a bond hearing
violates her right to Due Process. Although Petitioner
appears to assert in her petition that she is detained
pursuant to 8 U.S.C. § 1226(c), because she was placed
into removal proceedings based on her status as an arriving
alien, she was at the time she submitted her original
petition detained pursuant to 8 U.S.C. § 1225, which
applies to arriving aliens not clearly entitled to admittance
to the United States, rather than 8 U.S.C, § 1226(c),
which applies only to certain classes of aliens who have
entered the United States and been convicted of specified
crimes. In any event, because she is now subject to an
administratively final order of removal insomuch as the BIA
dismissed her appeal in September 2019, it is clear that
Petitioner is now subject to detention under 8 U.S.C. §
1231(a). See, e.g., 8 U.S.C. § 1231(a);
Leslie v. Alt'y Gen., 578 F.3d 265, 268-70 (3d
Cir. 2012). Petitioner's entitlement to relief must
therefore be evaluated under § 1231(a), and any claim
Petitioner had challenging her detention under § 1225 is
dismissed as moot as she is no longer detained pursuant to
that statute. Rodney v. Mukasey, 340 Fed.Appx. 761,
764- 65 (3d Cir. 2009).
Petitioner is subject to detention under § 1231(a), the
propriety of her detention is controlled by the Supreme
Court's decision in Zadvydas and the Third
Circuit's decision in Guerrero-Sanchez v. Warden York
Cniy Prison, 905 F.3d 208, 225-26 (3d Cir. 2018). As the
Supreme Court has explained,
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 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. Ibid:
Jennings v. Rodriguez, _____ U.S. _____, 138 S.Ct.
830, 843 (2018). 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 premature. Id.; Zadvydas, 533 U.S. at
701. Although the Third Circuit has provided an alternative
avenue for relief in the form of a bond hearing for those
alien's whose detention under § 1231(a) has become
unreasonably prolonged, the Third Circuit expressly held that
an alien is not entitled to a bond hearing under
Guerrero-Sancehz until the six month presumptively
reasonable period discussed in Zadvydas has elapsed.
See Guerrero-Sanchez v. Warden York Cnty. Prison,905 F.3d 208, 225-26 (3d Cir. 2018). Zadvydas and
Guerrero-Sanchez thus make clearly establish that an
alien detained pursuant to § 1231(a) must be held during
the statutory ninety-day removal period and that she may not
challenge her detention under the statute until she has been
detained under it for at least six months. As Petitioner has