MEMORANDUM

MALACHY E. MANNION, District Judge.

I. Background

On June 14, 2017, Petitioner, Thomas Omollo, an immigration detainee of the United States Department of Homeland Security, Immigration and Customs Enforcement ("ICE"), currently housed in York County Prison, filed the above captioned petition for writ of habeas corpus, pursuant to 28 U.S.C. §2241. (Doc. 1). At the time of petition, Omollo was in pre-final immigration detention, and challenged his prolonged detention, requesting he be granted a bond hearing. Id. Simultaneous to the above captioned petition, Omollo was pursuing, in the United States Court of Appeals for the Third Circuit, a petition for review of the Immigration Court's decision to deny his applications for asylum, for withholding of removal and for protection under the Convention Against Torture. See Omollo v. Att'y Gen., No. 17-2306 (3d Cir. 2017).

By Order dated October 30, 2017, the Court, finding that Respondent did not oppose Petitioner's request for a bond hearing, granted the petition for writ of habeas and directed that Petitioner be granted a bond hearing. (Doc. 7).

Presently before the Court is Respondent's motion to stay and to amend and vacate this Court's October 30, 2017 Order, granting the habeas petition. (Doc. 8). No brief in opposition has been filed. For the reasons that follow, Respondent's motion will be granted.

II. DISCUSSION

A motion for reconsideration is a device of limited utility. It may be used only to seek remediation for manifest errors of law or fact or to present newly discovered evidence which, if discovered previously, might have affected the court's decision. Harsco Corp. v. Zlotnicki, 779 F.2d 906 (3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986). Accordingly, a party seeking reconsideration must demonstrate at least one of the following grounds prior to the court altering, or amending, a standing judgment: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Café v. Quineros, 176 F.3d 669, 677 (3d Cir. 1999)(citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for reconsideration is appropriate in instances where the court has ". . . misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning, but of apprehension." See Rohrbach v. AT & T Nassau Metals Corp., 902 F.Supp. 523, 527 (M.D. Pa. 1995), vacated in part on other grounds on reconsideration, 915 F.Supp. 712 (M.D. Pa. 1996), quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). It may not be used as a means to reargue unsuccessful theories, or argue new facts or issues that were not presented to the court in the context of the matter previously decided. Drysdale v. Woerth, 153 F.Supp.2d 678, 682 (E.D. Pa. 2001). "Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Continental Casualty Co. v. Diversified Indus. Inc., 884 F.Supp. 937, 943 (E.D. Pa. 1995).

In support of his motion for reconsideration, Respondent states that at the time of their response to the petition, Omollo was in pre-final order detention and his detention was governed by 8 U.S.C. §1226(c), which mandates the detention of aliens with certain criminal convictions during the pendency of their removal proceedings. See also Leslie v. Attorney Gen. of U.S., 678 F.3d 265, 270 (3d Cir. 2012) (finding that where an alien benefits from a stay of removal following an administratively final order of removal, Section 1226 continues to provide the statutory authority for detention).

However, on October 4, 2017, prior to this Court's Order, the Court of Appeals dismissed Omollo's petition for review at Omollo's request and dismissed the stay of proceedings. (See Doc. 9-1 at 7, Order). The dismissal of Omollo's pending petition for review converted his mandatory detention under Section 1226 to post-final order detention under Section 1231. See e.g, Leslie, 678 F.3d at 269-70; Jones v. Sabol, 2010 WL 4384251, at *4 (M.D. Pa. Oct. 29, 2010) ("[I]f Jones chooses not to file a petition for review with the Third Circuit Court of Appeals, or if he files a petition for review and a motion for stay, and the motion is denied, then his order of removal will become administratively final. . . . After an order of removal becomes final, an alien is detained under the post-final Order provisions of 8 U.S.C. §1231(a)."); Wilson v. Green, 2016 WL 4571389, at *2-3 (D. N.J. Sept. 1, 2016) (concluding that alien's detention during period of temporary stay of removal was governed by §1226(c), and governed by §1231 after the Court of Appeals for the Third Circuit denied the alien's motion for stay and vacated the temporary stay of removal). Because Respondent's motion presents evidence regarding Omollo's detention, which, if available at the time of this Court's October 30, 2017, would have affected this Court's decision, the Court will grant Respondents' motion for reconsideration, and vacate its October 30, 2017 Order granting Omollo a bond hearing. The Court, however, will not reopen the above captioned action.

When Omollo commenced this action, he was subject to pre-final order detention, and was detained under 8 U.S.C. §1226(c). Because Omollo's removal order became final on October 4, 2017, he is no longer being detained pursuant to Section 1226. Therefore, Omollo's claim pursuant to that section is necessarily moot because he is now subject to a final order of removal.1 Rodney v. Mukasey, 340 Fed.Appx. 761, 764 (3d Cir. 2009) (finding that the change in the procedural posture of the case from pre-final order to post-final order mooted petitioner's challenge to pre-final order detention under section 1226(c) because "[t]he injury alleged, unreasonably long pre-final order of removal detention under 8 U.S.C. §1226(c), can no longer be redressed by a favorable judicial decision"). Omollo is permitted, however, to file a new section 2241 petition challenging his post-removal order under 8 U.S.C. §1231. Consequently, Respondent's motion for reconsideration of this Court's Order granting a bond hearing will be granted and Omollo's petition for writ of habeas corpus will be dismissed as moot.

An appropriate order shall follow.

Attorneys and Law Firms

Rannord Jones, York, PA, pro se.

Stephen Cerutti, Mark Morrison, Department of Justice/United States Attorney's Office, Harrisburg, PA, for Respondents.

MEMORANDUM

JOHN E. JONES III, District Judge.

*1 THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Rannord Jones ("Petitioner" or "Jones"), a detainee of the United States Immigration and Customs Enforcement ("ICE") Office, who is confined at the York County Correctional Facility in York, Pennsylvania, initiated this action by filing a Petition for Writ of Habeas Corpus ("Petition") pursuant to the provisions of 28 U.S.C. § 2241. Jones asserts that the charges of removability against him do not subject him to mandatory detention and therefore requests that this Court grant his Petition and direct his immediate release. (See Doc. 1.)

By Order dated July 9, 2010, service of the Petition was directed, and Respondents were directed to file an answer within twenty-one (21) days. (Doc. 4.) On July 30, 2010, a Response (Doc. 6), exhibits (Doc. 6-2), and supporting authority (Doc. 6-3) were filed. Petitioner filed a reply brief (Doc. 7) on August 17, 2010. Accordingly, the Petition is fully briefed and ripe for disposition. For the reasons set forth below, the Petition will be denied.

I. FACTUAL BACKGROUND

Jones, a native and citizen of Jamaica, first entered the United States on September 13, 1996 as a lawful permanent resident. (Doc. 6-2 at 21, Ex. 1, Immigrant Visa and Alien Registration.) On December 1, 1997, Jones pled guilty in the Superior Court of the State of Delaware for conspiracy in the third degree and possession/use of a non-narcotic Schedule IV controlled substance. (Id. at 4-5, Ex. 2, Delaware Superior Court Criminal Docket.) Jones was sentenced on the possession/use charge to one (1) year of confinement, suspended to one (1) year of intense supervision, and on the conspiracy charge, to one (1) year of confinement, suspended to one (1) year of probation. (Id.; Doc. 6-2 at 7, Ex. 3, Record of Deportable/Inadmissible Alien.)

Jones subsequently returned to Jamaica. However, on December 14, 2006, he attempted to re-enter the United States at Baltimore, Maryland. (Id. at 11, Ex. 4, Notice to Appear.) Upon his arrival, Jones applied for admission into the United States as a returning lawful permanent resident. (Id.) However, as a result of his 1997 criminal convictions in Delaware, his inspection was deferred. (Id.)

On January 12, 2007, Jones reported for deferred inspection at Philadelphia. (Id.) At that time, he was served with a Notice to Appear before an immigration judge to show why he should not be removed from the United States. (Id. at 10-11.) The Notice to Appear charged Jones with removability under § 212(a)(2)(A)(i) (II) of the Immigration and Nationality Act ("INA") as "an alien who has been and Nationality Act ("INA") as "an alien who has been convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of (or a conspiracy or attempt to violate) any law or regulation of a State . . . relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))." (Id. at 11.)

*2 While his immigration proceedings were pending, Jones was arrested by Delaware state authorities and convicted on November 21, 20082 of assault in the third degree, terroristic threatening, and abuse of a sports official. (Id. at 16-18, Ex. 6, Delaware Superior Court Criminal Docket.) On January 9, 2009, Jones was sentenced on the assault charge to one (1) year of confinement, suspended after serving six (6) months to partial confinement for one (1) year; on the terroristic threat charge to one (1) year confinement, suspended to one (1) year of probation; and on the abuse charge, to one (1) year of confinement, suspended to one (1) year of probation. (Id. at 8, Record of Deportable/Inadmissible Alien.)

On June 10, 2009, an immigration detainer was lodged with Delaware correctional officials. (Id. at 21, Immigration Detainer Notice of Action.) On June 18, 2009, a Record of Deportable/Inadmissible Alien, Warrant for Arrest of Alien, and Notice of Custody Determination were issued. (Doc. 6-2 at 6-8; Doc. 6-2 at 22, Ex. 9, Warrant for Arrest of Alien; Doc. 6-2 at 23, Ex. 10, Notice of Custody Determination.) The following day, June 19, 2009, the arrest warrant and custody determination notice were served upon Jones. (Doc. 6-2 at 22, 23.) Jones has been in ICE custody since June 19, 2009. (Id.)

On August 24, 2009, the Notice to Appear was amended to include the charge of removability under INA 212(a)(2)(A)(i)(I), "as an alien who has been convicted of, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude." (Id. at 24-25, Ex. 11, Additional Charges of Inadmissibility/Deportability.)

Subsequently, Jones sought relief from removal under INA section 212(h). (Id. at 26-27, Ex. 12, IJ Ruling on Eligibility.) Specifically, he sought a waiver of inadmissibility based on his argument that his Delaware conviction for terroristic threats does not amount to a "crime of violence" aggravated felony. (See id.) On February 10,2010, an Immigration Judge ("IJ") determined that Jones was ineligible for a section 212(h) waiver of inadmissibility to waive an aggravated felony conviction in light of his status as a lawful permanent resident alien. (See id.)

By Order dated March 8, 2010, the IJ ordered Jones removed from the United States to Jamaica. (Id. at 28, Ex. 13, Order of Removal.) On April 1, 2010, Jones filed an appeal from the Order of Removal to the Board of Immigration Appeals ("BIA"). (Id. at 29-31, Ex. 14, Copy of Notice of Appeal.) On May 4, 2010, the Department of Homeland Security ("DHS") filed a motion for summary affirmance of the decision of the IJ. (Id. at 32-34, Ex. 15, DHS Motion for Summary Affirmance.) On June 14, 2010, a brief in support of the appeal was filed by Jones' counsel. (Id. at 35-47, Ex. 16, Jones' Brief in Support of Merits Appeal.) The appeal was pending before the BIA at the time of the submission of the Response in this action on July 30, 2010. However, a check of the Immigration Court Information System, provided by the Executive Office for Immigration Review ("EOIR"), as of the date of this Memorandum reveals that, on October 27, 2010, Jones' appeal was dismissed by the BIA.

II. DISCUSSION

*3 In his Petition, and in his reply brief, Jones asserts that the charges of removability against him do not constitute a basis for mandatory detention. However, 8 U.S.C. § 1226(c), which is the mandatory detention provision of the INA, provides as follows:

The Attorney General shall take into custody any alien who—

(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,

(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,

(C) is deportable under section 1227(a)(2)(A)(I) of this title on the basis of an offense for which the alien has been sentence [FN 1] to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,

8 U.S.C. § 1226(c)(1). In the instant case, Jones was charged with removability, and ultimately found to be removable, under section 1227(a)(2)(B) because he pled guilty and was convicted of a crime relating to a controlled substance in the state of Delaware on December 1, 1997 (see Doc. 6-2 at 4-5), and under section 1182(a)(2)(A)(i)(I) because he was convicted on November 21, 2008 of a crime involving moral turpitude, and specifically, of assault in the third degree, terroristic threatening, and abuse of a sports official (see id. at 16-18.) Therefore, it is evident that Jones is subject to mandatory detention. See 8 U.S.C. § 1226(c)(1)(A) and (B).

In his reply brief, Jones attempts to dispute the fact that he is subject to mandatory detention by arguing that his 1997 drug possession charge was not included in the original Notice to Appear, and therefore, is not a valid basis to hold him in mandatory detention. (See Doc. 7, Reply Brief, at 1.) Contrary to Jones' assertion, the original Notice to Appear served on Jones on January 12, 2007 clearly charges him with removability under § 212(a)(2) (A)(i)(II) of the Immigration and Nationality Act ("INA") as "an alien who has been convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of (or a conspiracy or attempt to violate) any law or regulation of a State . . . relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))." (Doc. 6-2 at 11.)

Jones also asserts in his reply brief that the "terroristic threats charge" should not be used to justify his detention because he claims that "it is not a clear charge because it is a new charge in the U.S. jurisprudence and has raised a lot of questions" as to whether it is a "crime of violence." (See Doc. 7 at 1.) Notwithstanding the accuracy of Jones' statement, it is of no moment in these proceedings because any challenge by Jones to the characterization of the charges that formed the basis for the determination that he is removable constitutes a challenge to his order of removal itself. This Court lacks jurisdiction over such a challenge because the REAL ID Act of 2005 provides that "a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision" of the Act. 8 U.S.C. § 1252(a)(5). Indeed, Jones raised this issue both in seeking a waiver of removal under section 212(h) from the Immigration Court and in his appeal to the BIA from his final order of removal. (See Doc. 6-2 at 26-27, 36-46.)

*4 At the time the instant Petition became ripe, Jones still was subject to mandatory detention because his appeal from his order of removal still was pending with the BIA, and thus his order of removal had not yet become administratively final, and his removal period had not yet begun. See 8 U.S.C. § 1231(a)(1)(B). However, as noted above, the BIA dismissed Jones' appeal on October 27, 2010. Consequently, two scenarios now are possible. In the first scenario, if Jones chooses not to file a petition for review with the Third Circuit Court of Appeals, or if he files a petition for review and a motion for stay, and the motion is denied, then his order of removal will become administratively final as of October 27, 2010. See id. After an order of removal becomes final, an alien is detained under the post-final Order provisions of 8 U.S.C. § 1231(a).

In the second possible scenario, if Jones files a petition for review and a motion for a stay of removal, and the Third Circuit Court of Appeals grants his motion, then his order of removal will not become administratively final until the Third Circuit Court of Appeals enters a final order as to his petition, and therefore, he will continue to be subject to the mandatory detention provisions of 8 U.S.C. § 1226(c). See 8 U.S.C. § 1231(a)(1)(B). Under either scenario, as more fully set forth below, we must deny Jones' request for habeas relief.

In the former scenario, where Jones' order of removal becomes administratively final as of October 27, 2010, then, as of that date, his removal period would begin, and he would be subject to detention under the post-final order provisions of 8 U.S.C. § 1231(a). Title 8 U.S.C. § 1231(a) gives the Attorney General ninety (90) days to remove an alien from the United States after an order of removal. During this ninety (90) day period, detention is mandatory. 8 U.S.C. § 1231(a). At the end of the ninety (90) day period, ICE may continue to hold the alien, or it may grant supervised release. 8 U.S.C. §§ 1231(a)(3) & (6). The discretion to detain an alien under § 1231(a) is limited by the Fifth Amendment's Due Process clause. See Zadvydas v. Davis, 533 U.S. 678, 693-94, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).

In Zadvydas, the United States Supreme Court interpreted § 1231(a)(6) to include "an implicit limitation" on detention. Id. at 689. The Court determined that "[§ 1231(a)(6)], read in light of the Constitution's demands, limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention." Id. "[F]or the sake of uniform administration in the federal courts" the Court recognized six (6) months as a presumptively reasonable period of detention. Id. at 701. Further, the Court determined that, "once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing." Id.

*5 In the case at hand, in the first scenario outlined above where Jones' order of removal becomes final on October 27, 2010, then the ninety (90) day mandatory detention period would begin to run on that date and would not expire until January 25, 2011. Morever, the six (6) month presumptively reasonable period of removal would not expire until April 27, 2011. Thus, the instant request for habeas relief, to the extent that it now would be construed to be under the post-final order provisions, would be premature.

Under the second scenario set forth above where Jones continues to be subject to mandatory detention until the conclusion of judicial review by the Third Circuit Court of Appeals, we must consider the reasonableness of his continued detention. In Alii v. Decker, 644 F.Supp.2d 535, 541 (M.D.Pa.2009), this Court "construed § 1226(c) as authorizing mandatory detention for the period of time reasonably necessary to promptly initiate and conclude removal proceedings." Further, we held that, "[i]f an alien detained pursuant to § 1226(c) makes a showing via a habeas petition that detention is no longer reasonable, the alien must be afforded a hearing before the habeas court at which the government bears the burden of justifying continued detention based on traditional bail factors such as the alien's risk of flight and potential danger to the community. "Id. We then adopted a case-specific reasonableness standard for analyzing whether a habeas petitioner subject to the mandatory detention provisions of § 1226(c) should be afforded a bond hearing. Id. at 541-43. In adopting that standard, we noted some of the factors to be considered in applying the reasonableness standard, including whether the detention has continued beyond the average time necessary for completion of removal proceedings; the probable extent of future removal proceedings; the likelihood that removal proceedings actually will result in removal; and the conduct of both the alien and the government during the pendency of removal proceedings. Id. at 543-45.

While we observed that the factors we set forth in Alii were by no means exhaustive, id. at 543, a consideration of these factors in this case reveals that Jones' detention has not become unreasonable. As to the length of his detention, Jones asserts in his Petition that he is in a similar situation as a petitioner named Stephen Motto, whose petition for writ of habeas corpus was considered by another Member of this Court earlier this year. Specifically, Jones claims that he is subject to the same prolonged period of detention "without a clear explanation of why [he] is a danger to society or a flight risk." (See Doc. 1 at 5.)

Preliminarily, we note that a petitioner subject to mandatory detention would not be entitled to a hearing at which the government would have the burden of establishing that he is a danger to society or flight risk until it has been determined that his detention is unreasonable. Therefore, Jones would not be entitled to that proceeding unless we find in the context of the instant action that his detention is unreasonable.

*6 Moreover, Jones' situation is not akin to Motto's. In disposing of Motto's petition for writ of habeas corpus, Judge Muir observed that the twenty (20) month length of Motto's detention was "approaching a duration that is problematic", and therefore directed ICE to address his continued detention at a hearing that already was scheduled to occur in Immigration Court. See Motto v. Sabol, 2010 WL 146315, at Civil No. 4:CV-09-1675 (M.D.Pa. Jan. 11, 2010) (Muir, J.). In the case at hand, while it is true that Jones has been in ICE custody since June 19, 2009, which is over sixteen (16) months as of the date of this Memorandum, we also observe that the length of time from the date on which he was taken into ICE custody (June 19, 2009) and the date on which he was ordered removed (March 8, 2010), a total of just over eight (8) months, does not appear to be an unreasonable amount of time in which to complete immigration proceedings. Jones has continued to be subject to mandatory detention since March 8, 2010 because he has chosen to pursue an appeal from his order of removal, and thus his removal period has been delayed. Further, in light of the fact that the BIA now has disposed of Jones' appeal, removal proceedings either will conclude if he chooses not to pursue any additional relief, or, if he files a petition for review and is successful in securing a stay of his removal, his removal proceedings will conclude after the Third Circuit Court of Appeals disposes of his petition for review. In the event he chooses the latter option, there is no reason to believe that the petition for review will not be disposed of in an expeditious fashion.

As to the other factors we set forth in Alii, where the IJ, and now the BIA, both have rejected Jones' argument that his conviction in Delaware for terrorist threats does not amount to a "crime of violence" aggravated felony such that he is eligible to seek a waiver of inadmissibility pursuant to INA § 212(h), it appears likely that removal proceedings actually will result in removal. Also, there is no indication in the record that Jamaican officials will not cooperate in the effort to secure the travel documents that will be necessary to effect Jones' removal to that country. Finally, there is nothing in the record showing that either Jones or the government have engaged in conduct that has significantly prolonged the pendency of removal proceedings. Therefore, based on the foregoing considerations, we find that, in the event Jones continues to be subject to mandatory detention, he has not established that his continued detention is unreasonable.

III. CONCLUSION

For the foregoing reasons, we will deny Jones' Petition for Writ of Habeas Corpus. An appropriate Order will enter.

All Citations

Not Reported in F.Supp.2d, 2010 WL 4384251

Attorneys and Law Firms

Brian Wilson, Newark, NJ, pro se.

Caroline A. Sadlowski, United States Attorney's Office, Newark, NJ, Timothy Bo Stanton, U.S. Department of Justice, Washington, DC, for Respondents.

OPINION

WIGENTON, District Judge

*1 Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Brian Wilson, filed pursuant to 28 U.S.C. § 2241. (ECF No. 1). Following this Court's Order to Answer, the Government filed a response to the petition (ECF No. 4), to which Petitioner has replied. (ECF No. 5, 6). For the following reasons, this Court will deny the petition without prejudice.

I. BACKGROUND

Petitioner, Brian Wilson, is a native and citizen of Trinidad and Tobago who entered this country and became a permanent resident alien in January 1975.1 (ECF No. 4 at 92). During his time in this country, Petitioner has developed a significant criminal history including a June 1995 conviction for attempted criminal sale of heroin in New York, a September 1996 conviction for conspiracy to commit the criminal sale of heroin in New York, and a December 2012 conviction for manslaughter in New Jersey. (Id. at 40-46). On March 15, 2013, Petitioner was released from prison following the completion of his manslaughter sentence2 into immigration custody. (Id. at 48-49). At or near that time, Petitioner was provided with a notice to appear charging him with removability based on his criminal history. (Id.). Petitioner has remained in immigration detention since that date.

On June 18, 2014, Petitioner was ordered removed by an immigration judge. (Id. at 58-65). Petitioner appealed, and, after a remand from the Board of Immigration Appeals ("BIA"), was again ordered removed in June 2015. (Id. at 68-80). Petitioner appealed once more, and the BIA ultimately affirmed his order of removal and dismissed Petitioner's appeal on December 14, 2015. (Id. at 75-80). Following this final order of removal, however, Petitioner filed a petition for review with the Third Circuit, accompanied by a motion for a stay of removal. (Id. at 23). Pursuant to a standing order of the Third Circuit, Petitioner was granted a temporary stay pending a decision on his stay motion by a merits panel on December 23, 2015. (Id.). Following a counter motion by the Government, the Third Circuit entered an order denying Petitioner's motion for a stay of removal on February 16, 2016. (Id.). In that same order, the Third Circuit also vacated the temporary stay order. (Id.; see also Third Circuit Docket No. 15-4033 at Document 003112207673). On July 19, 2016, the Third Circuit entered a final order and opinion dismissing in part and denying in part Petitioner's petition for review. Wilson v. Att'y Gen. of the United States, Fed.Appx., 2016 WL 3902220 (3d Cir. 2016). On or about April 6, 2016, Petitioner filed the instant habeas petition. (ECF No. 1). The Government filed a response on May 23, 2016. (ECF No. 4). Petitioner thereafter filed his reply on or about June 27, 2016. (ECF No. 6).

*2 Following the denial of Petitioner's motion for a stay, the Government began to seek his removal to Trinidad and Tobago. On May 6, 2016, immigration officials sent a request for a travel document to the consulate for Trinidad and Tobago, accompanied by Petitioner's birth certificate, passport photo, fingerprint card, and order of removal. (ECF No. 4 at 24). The Government thereafter prepared to place Petitioner on a flight to Trinidad and Tobago on May 30, 2016. (Id.). Prior to that flight, however, the consulate requested a chance to interview Petitioner before issuing a travel document on May 16, 2016. (Id.). A telephone interview was arranged the following day, but Petitioner refused to answer questions over the phone as he could not verify to whom he was speaking. (Id. at 57). An in person interview with the consulate was therefore conducted on May 20, 2016. (Id.). Because Petitioner made some claims that there was some kind of litigation ongoing in his previous criminal cases, however, the consulate stated that it would need more information before issuing a travel document. (Id. at 57-58). The consulate indicated to Petitioner's deportation officer, however, that the travel document issuance procedure would move forward once the consulate received responses from immigration officials. (Id. at 58).

II. DISCUSSION

A. Legal Standard

Under 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. Lemna, 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).

B. Analysis

1. The Statutory Basis for Petitioner's Detention

In his initial habeas petition, Petitioner asserted that he was entitled to a bond hearing because he had been held pursuant to 8 U.S.C. § 1226(c) for some three years without a bond hearing in violation of Diop v. ICE/Homeland Sec., 656 F.3d 221, 231-35 (3d Cir. 2011), and Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d Cir. 2015), and that his continued detention therefore violates Due Process. The Government instead argues that Petitioner is now detained pursuant to 8 U.S.C. § 1231(a). As the basis for Petitioner's detention controls Petitioner's entitlement to relief, this Court must first determine the statutory basis for Petitioner's detention before addressing that entitlement.

As this Court has explained,

[w]hile § 1226(c) controls the detention of certain criminal aliens during the pendency of their removal hearings, § 1231(a) controls the detention of removable aliens "during" and "beyond" "the [statutory] removal period." See Leslie v. Attorney Gen. of United States, 678 F.3d 265, 269-70 (3d Cir. 2012). Thus, if Petitioner is currently in or beyond the statutory removal period, his detention must be controlled by § 1231(a). Pursuant to the statute, the removal period in a given alien's case begins on the latest of one of the following dates: the date that the alien's order of removal becomes administratively final; "if the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order"; or if the alien is detained on a basis other than his removal, the date on which he is released from that other detention. 8 U.S.C. § 123 1(a)(1)(B). The Third Circuit in Leslie thus explained that "during a stay of removal" entered by a Court of Appeals "§ 1226, [and] not § 1231 governs detention." Leslie, 678 F.3d at 270. . . . [I]t "is only through the grant of a stay or the overturning of a final order of removal that an alien's status reverts to pre-removal detention, the filing of an appeal or an application for a stay is insufficient to alter [an] alien's status. See Leslie, 678 F.3d at 268-70; Llorente[ v. Holder, No. 11-6940,] 2012 WL 119147[, at *5-6 (D.N.J. Apr. 10, 2012) ]." Granados v. Green, No. 15-8577, 2015 WL 9216595, at *2 (D.N.J. Dec. 16, 2015).

*3 Granados v. Green, No. 15-8917. 2016 WL 1572540, at *3 (D.N.J. Apr. 19, 2016).

In this matter, Petitioner received a final order of removal in December 2015 when the BIA dismissed his appeal. Although Petitioner's detention would have transitioned to § 1231(a) at that time, the granting of a temporary stay by the Third Circuit would have reverted him to § 1226(c) detention. See Leslie, 678 F.3d at 270. Once the Third Circuit vacated that stay order, however, Petitioner would have once again been subject to a final order of removal and thus would be within the removal period. Id. In any event, as the Third Circuit clearly denied and dismissed his petition for review in July, the Third Circuit's final order has been issued, and Petitioner has certainly entered the removal period by this point in time. Petitioner is therefore currently detained pursuant to § 1231(a). Id.; 8 U.S.C. § 1231(a)(1)(B).

2. Petitioner is not entitled to relief under Zadvydas Because Petitioner is currently detained under 8 U.S.C. § 1231(a), the propriety of his detention is governed by the Supreme Court's decision in Zadvydas, 533 U.S. at 701. In Zadvydas, the Court observed that § 1231(a) requires the Government to detain aliens subject to final orders of removal throughout the ninety day statutory removal period. Id. at 683. The Court likewise held that aliens may be detained beyond ninety days so long as their detention is "reasonably necessary" to effectuate the petitioner's removal. Id. at 689, 699. Based on these two observations, the Zadvydas Court concluded that the detention of removable aliens for a period of up to six months following a final order of removal is presumptively reasonable under § 1231(a). Id. at 701. Where a habeas petitioner has been detained under § 1231(a) for more than six months following a final order of removal, however, an alien may challenge his continued post-final order detention by showing that there is "no significant likelihood of removal in the reasonably foreseeable future." Id. To be entitled to such relief, a habeas petitioner must first "`provide[ ] good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future,' after which the Government `must respond with evidence sufficient to rebut that showing.'" Alexander v. Att'y Gen., 495 Fed.Appx. 274, 276 (3d Cir 2012) (quoting Zadvydas, 533 U.S. at 701). "Zadvydas does not delineate the boundaries of evidentiary sufficiency, but it suggests that an inversely proportional relationship is at play: the longer an alien is detained, the less he must put forward to obtain relief." Id. at 276-77.

Initially, the Court notes that the propriety of Petitioner's habeas challenge depends entirely on the date that his order of removal once again became final. If that date was controlled by the date of the Third Circuit's final opinion and order, Petitioner would still be well within the ninety day removal period. If, however, this Court instead ran the removal period from the date on which the Third Circuit vacated the temporary stay order, February 16, 2016, Petitioner's post-final order detention would have reached six months on August 16, 2016, and Petitioner would currently be just beyond the presumptively reasonable period.

*4 Even assuming that the earlier date applies, and that Petitioner's post-final order detention has surpassed the presumptively reasonable period, Petitioner is still not entitled to relief because Petitioner has failed to give this Court "good reason to believe" that there is no significant likelihood of removal in the reasonably foreseeable future. Alexander, 495 Fed.Appx. at 276. The record before this Court contains no indication that there is any real impediment to Petitioner's removal. Indeed, the record suggests that the consulate of Trinidad and Tobago was prepared to move forward with issuing a travel document for Petitioner once Petitioner's claim to have ongoing litigation in his criminal cases was cleared up, and may already have done so. The record further suggests that at least some of the delay in removing Petitioner was the result of Petitioner's own refusal to answer questions prior to the in-person meeting with a consulate representative. Petitioner has provided no evidence to suggest that his removal process will not proceed smoothly and conclude in the foreseeable future, and to the extent that he has claimed such, the Government has provided sufficient evidence to show that it is significantly likely that Petitioner will be removed in the foreseeable future as the travel document procurement process appears to be proceeding. As such, Petitioner has failed to meet his initial burden, and the Government has in any event rebutted Petitioner's argument that his removal is not likely in the reasonably foreseeable future, and as such Petitioner is not entitled to relief under Zadvydas at this time. Id. This habeas petition must therefore be denied without prejudice.

III. CONCLUSION

For the reasons stated above, this Court will deny Petitioner's petition for a writ of habeas corpus (ECF No. 1) without prejudice. An appropriate order follows.

All Citations

Not Reported in F.Supp.3d, 2016 WL 4571389