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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

VINCENZO MORENA, :

: CIVIL ACTION NO. 4:CV-05-0895

Petitioner : A# 30-915-454

:

v. : (Judge Jones)

:

ALBERTO R. GONZALES, et al., : (Magistrate Judge Blewitt)

:

Respondents. :

MEMORANDUM AND ORDER 

December 2, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On May 2, 2005, Petitioner Vincenzo Morena (“Petitioner” or “Morena”),

through counsel, filed a Petition for Writ of Habeas Corpus (“the Petition”)

pursuant to 28 U.S.C. § 2241. In his Petition, Morena, who is detained at the

Clinton County Prison, challenges the constitutionality of his continued detention

by United States Immigration and Customs Enforcement (“ICE”), and seeks

release from confinement. 

The Petition was initially referred to United States Magistrate Judge Thomas

M. Blewitt. On June 6, 2005, this Court adopted Magistrate Judge Blewitt’s

Report and Recommendation to dismiss an Eighth Amendment Claim that Morena

had raised in his original Habeas Petition. The following day Morena filed an

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Amended Petition for Writ of Habeas Corpus (“Amended Petition”) with exhibits. 

(Rec. Doc. 9.) 

On October 4, 2005, Magistrate Judge Blewitt issued a seventeen page

Report and Recommendation, which recommended that Morena’s Amended

Petition be denied.

On October 21, 2005, Petitioner filed objections to the Report and

Recommendation. This matter is therefore ripe for disposition. The Court will

address Petitioner’s objections and adopt the Magistrate Judge’s Report and

Recommendation, thereby dismissing Morena’s Amended Petition and closing the

case.

STANDARD OF REVIEW:

When objections are filed to a report of a magistrate judge, we make a de

novo determination of those portions of the report or specified proposed findings or

recommendations made by the magistrate judge to which there are objections. See

United States v. Raddatz, 447 U.S. 667 (1980); see also 28 U.S.C. § 636(b)(1);

Local Rule 72.3. Furthermore, district judges have wide discretion as to how they

treat recommendations of a magistrate judge. See id. Indeed, in providing for a de

novo review determination rather than a de novo hearing, Congress intended to

permit whatever reliance a district judge, in the exercise of sound discretion,

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chooses to place on a magistrate judge's proposed findings and recommendations. 

See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark,

749 F.2d 5, 7 (3d Cir. 1984).

FACTUAL BACKGROUND:

We briefly reiterate the relevant facts of this case. Petitioner is a native and

citizen of Italy and entered the United States as a lawful permanent resident as an

infant in 1973. On March 30, 2001, Petitioner was convicted of Racketeering in

violation of 18 U.S.C. § 1962(d), in the United States District Court for the Eastern

District of New York. (Rec. Doc. 26-2, Ex. C.) Morena was sentenced to fifty-one

(51) months imprisonment. Id. As a result of his conviction, removal proceedings

were commenced on July 23, 2001, when the then-INS served Morena with a

Notice to Appear. (Rec. Doc. 26-2, Ex. A). The Notice to Appear charged that

Morena was removable under § 237(a)(2)(A)(iii) of the Immigration and

Nationality Act (“INA”), as an alien who had been convicted of an aggravated

felony as defined in § 101(a)(43) of the INA. 

On November 4, 2003, an Immigration Judge (“IJ”) sitting in Philadelphia,

Pennsylvania ordered Morena removed from the United States to Italy. (Rec. Doc.

26-2, Ex. D.) Morena appealed this decision to the Board of Immigration Appeals

(“BIA”). On March 25, 2004, the BIA summarily denied his appeal. (Rec. Doc.

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26-2, E.)

On April 15, 2004, Morena filed a Petition for Writ of Habeas Corpus

seeking to challenge his removal in the United States District Court for the Eastern

District of New York. Morena v. Ashcroft, No. 04-1551 (E.D.N.Y.) (Amon, J.) 

On April 21, 2004, Morena was granted a temporary stay of deportation pending

resolution of Petitioner’s claims in his petition filed in the Eastern District of New

York. By an order dated October 3, 2005, Morena’s petition filed in the Eastern

District of New York was transferred to the United States Court of Appeals for the

Third Circuit. Morena v. Aschroft, No. 04-1551, Rec. Doc. No. 41 (E.D.N.Y. Oct.

3, 2005) (Amon, J.); see also Morena v. Atty Gen. U.S., No. 05-4494 (3d Cir.

2005). Morena’s stay was not lifted when the case was transferred.

ICE conducted a custody review of Morena in September 2004, and issued

an order on or about November 24, 2004 that found that Morena should remain in

ICE custody during the pendency of the judicial review. (Rec. Doc. 10-2, Ex. H.) 

ICE reiterated that Morena was found removable on the basis of his conviction of

an aggravated felony, found that Morena had a violent criminal conviction with a

weapon, and stated that on that basis he may pose a threat to society. Id. ICE also

noted that a travel document and removal will easily be obtained once the stay of

removal is lifted. Id. Finally, ICE informed Morena that if the stay was not lifted

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within a year of the November 2004 order, he would be scheduled for a Post-Order

Custody Review and served with a Notice to Alien of File Custody Review.

During the pendency of his petition in the Eastern District of New York

Morena filed the instant Petition challenging his continued detention in Clinton

County Prison.

DISCUSSION:

 Petitioner has filed two objections to the report and recommendation which

will be the subject of the narrative that follows.

A. Petitioner’s Removal Period has Not Yet Expired

The Magistrate Judge found that “since Petitioner’s removal period has not

yet expired, the Attorney General may detain him under 8 U.S.C. § 1231(a)(6), and

his detention does not violate the Constitution or the Supreme Court’s decision in

Zadvydas.” (Rep. & Rec. at 11.) Morena objects to this finding asserting that the

Magistrate Judge “limits his holding to a strict interpretation of the statute and

regulations, and implies that since Mr. Morena is within the removal period, his

continued detention cannot possibly be unconstitutional.” (Rec. Doc. 30, at 5.) He

then asserts that the Magistrate Judge has failed to address the question presented

in this case - “whether the due process clause of the Fifth Amendment requires that

a criminal alien be afforded an opportunity to be heard on the questions of

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 Petitioner states that this would be an extension of the holdings of Zadvydas v. Davis,

533 U.S. 678 (2001) and Demore v Kim, 538 U.S. 510 (2003).

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conditional release pending judicial review of an administrative removal, the

execution of which has been stayed by judicial order.” (Rec. Doc. 30, at 5.)1

First, we agree with Magistrate Judge Blewitt that Petitioner’s removal

period has not yet expired, and under the plain language of 8 U.S.C. §

1231(a)(1)(B)(ii), it has not yet begun. See also Singh v. Gonzales, 2005 WL

2783248, *4 (E.D. Pa. Oct. 24, 2005). Detention, release, and removal of aliens

ordered removed is governed by the provisions of 8 U.S.C. § 1231. After a final

order of removal the Attorney General has ninety days to remove an alien from the

United States. 8 U.S.C. § 1231(a)(1)(A). Detention is mandatory during this

ninety-day period. 8 U.S.C. § 1231(a)(2). Section 1231(a)(1)(B) provides that the

removal period begins to run on the latest of the following:

(i) The date the order of removal becomes administratively

final.

(ii) If the removal order is judicially reviewed and if the

court orders a stay of the removal of the alien, the date of

the court’s final order.

(iii) If the alien is detained or confined (except under an

immigration process), the date the alien is released from

detention or confinement. At the conclusion of the 90

day period, the alien may be held in continued detention,

or may be released under continued supervision. 8

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U.S.C. §§ 1231(a)(3) & (6).

8 U.S.C. § 1231(a)(1)(B). Zadvydas is inapplicable to Petitioner, nor should its

reasoning be extended to a criminal alien who has sought judicial review of an

administrative order of removal. 

During the administrative removal proceedings Morena’s detention as an

alien convicted of an aggravated felony was mandatory, proper, and constitutional. 

See 8 U.S.C. § 1226(c)(1)(B) (authorizing mandatory detention of aliens convicted

of aggravated felonies); Demore v. Kim, 538 U.S. 510, 531 (2003) (upholding the

mandatory detention provision of 8 U.S.C. § 1226(c) as constitutional). Morena

asserts that because he has sought judicial review of the administrative removal

order, which has stayed execution of the order and his removal from the country,

he should be entitled to release from custody. This is simply legally incorrect and

logically inconsistent with the framework of the immigration laws and regulations.

Detention of aliens is governed under two different provisions of the INA, as

detailed below.

The determination of when an alien becomes subject to

detention under INA § 241 rather than INA § 236 is

governed by INA § 241(a)(1). Pursuant to §

241(a)(1)(B)(ii), “[i]f the removal order is judicially

reviewed and if a court orders a stay of the removal of the

alien [pending review],” then the removal period begins

on “the date of the court's final order.” Accordingly,

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where a court issues a stay pending its review of an

administrative removal order, the alien continues to be

detained under § 236 until the court renders its decision.

Wang v. Ashcroft, 320 F.3d 130, 147 (2d Cir. 2003) (emphasis added).

It is undisputed that Morena’s continued detention has occurred while he has had

the benefit of a judicial stay that has not yet been lifted. Morena’s detention is still

mandatory under 8 U.S.C. § 1226(c)(1)(B). See Clavis v. Ashcroft, 281 F. Supp.

2d 490, 493 (E.D.N.Y. 2003); Milbin v. Ashcroft, 293 F. Supp. 2d 158, (D. Conn.

2003); Lovell v. I.N.S., 2003 WL 22282176 (E.D.N.Y. May 21, 2003); see also

Quezada-Bucio v. Ridge, 317 F. Supp. 2d. 1221, 1223 (W.D. Wa. 2004)

(discussing transition from detention under INA § 236 and INA § 241 and holding

“an alien is not subject to INA § 241 detention until the removal period begins”);

Yang v. Chertoff, 2005 WL 2177097, *3 & n.6 (E.D. Mi. Sept. 8, 2005) (“when a

stay of removal is entered by the reviewing court, the matter is effectively removed

from a final removal order posture under subsection (i) [of 8 U.S.C. § 1231, INA §

241] to a non-final removal posture under subsection (ii) [of 8 U.S.C. § 1231, INA

§ 241]). 

Morena, an alien subject to mandatory detention during his removal

proceedings, is not entitled to be released pending judicial review of the

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2 The Magistrate Judge states that the Attorney General may detain Petitioner pursuant to

8 U.S.C. § 1231(a)(6) because that provision applies to aliens “detained beyond the removal

period.” As we have previously noted, Morena’s removal period has not yet begun, and his

current detention is governed by 8 U.S.C. § 1226.

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administrative removal order.2 Morena’s claim of indefinite detention is

premature, as his removal period has not yet begun. We thus decline Morena’s

request to extend the current state of the law.

B. Petitioner Has Had Meaningful Custody Reviews

Petitioner’s second objection asserts that the Magistrate Judge erred in

determining that he had meaningful custody reviews by ICE and that Morena’s

removal to Italy is reasonably foreseeable once the stay is lifted. Morena received

a custody review in September 2004 and a decision denying his release was issued

in November 2004. In that order ICE noted that a stay had been granted in

Morena’s case and that if the stay was not lifted within a year Morena would be

entitled to a Post-Custody Order of Review. At that time ICE noted Morena would

have another opportunity in a year for a review.

First, we note that Petitioner relies on a line of cases which assert that an 

alien with a stay of a final order of removal is entitled to a custody review under

the procedures set forth in 8 C.F.R. § 241.4. See Haynes v. Dep’t Homeland

Security, No. 05-339, 2005 WL 1606321 (M.D. Pa. July 8, 2005) (Vanaskie, C.J.)

(Haynes I); see also Oyedeji v. Ashcroft, 332 F. Supp. 2d 747, 753 (M.D. Pa.

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2004) (Vanaskie, C.J.). We agree with the Magistrate Judge that the facts of

Morena’s case are distinguishable from Oyedeji and Haynes. Morena has received

a meaningful custody review by ICE, and was scheduled to receive another review

in November 2005.

As we have noted in the previous section, if Morena is governed by the

detention provisions of 8 U.S.C. § 1226 during the pendency of his stay of

removal, which we believe he is, his detention is mandatory under the language of

the statute. See 8 U.S.C. § 1226(c)(1)(B). In Haynes I, our colleague Chief Judge

Vanaskie acknowledged that other courts have considered detention during a stay

pending review of an administrative removal order to be a detention authorized

under INA § 236. See Haynes I, 2005 WL 1606321 at *3. After acknowledging

that position, Judge Vanaskie addressed the constitutional dimension of whether

the Fifth Amendment requires that a criminal alien be afforded an opportunity to

be heard on the question of conditional release pending judicial review of a stayed

administrative removal order. Judge Vanaskie noted that the Supreme Court’s

holding in Demore, 538 U.S. 510, which authorized mandatory detention for

certain aliens under INA § 236, did not squarely address the situation of a criminal

alien who acquires a stay pending judicial review of the administrative order, and

directed ICE to conduct meaningful custody reviews consistent with 8 CFR §

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3 In support of his decision Judge Vanaskie cites to Justice Kennedy’s concurring

opinion, necessary for the fifth vote in Demore for the assertion that a lawful permanent resident

“could be entitled to an individualized determination as to his risk of flight and dangerousness if

the continued detention became unreasonable or unjustified.” Haynes I, 2005 WL 1606321, at

*4 (quoting Demore, 538 U.S. at 532) (Kennedy, J., concurring)).

However, we find the language in the majority opinion to be more persuasive, that even

for an alien pursuing an appeal, mandatory detention is permissible. The majority opinion noted

in the following footnote that:

Respondent contends that the length of detention required to

appeal may deter aliens from exercising their right to do so. . . . As

we have explained before however, “the legal system . . . is replete

with situations requiring the making of difficult judgments as to

which course to follow,” and, even in the criminal context, there is

no constitutional prohibition against requiring parties to make such

choices.

Demore, 538 U.S. at 530 n.14 (citations omitted).

The above language is very persuasive that aliens with stays pending the outcome of their

appeal of administrative decisions were considered when the Court found that Fifth Amendment

Due Process did not prohibit the mandatory detention provisions of 8 U.S.C. § 1226. 

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241.4.3 When the government failed to conduct a personal interview of the alien

during his custody review, as previously directed, Judge Vanaskie ordered him

released from custody. Haynes v. Dep’t Homeland Security, No. 05-339, 2005

WL 2452091 (M.D Pa.. Oct. 4, 2005) (Vanaskie, C.J.) (Haynes II).

We recognize that this area of law is far from settled, however, we do not

believe Morena is entitled to any greater reviews than those that ICE has already

provided him. Accordingly, we are not persuaded by Haynes I. The custody

reviews Morena has been provided satisfy due process. Morena is not governed by

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the terms of 8 C.F.R. 241.4, because that regulation governs certain aliens who are

detained beyond the removal period. As we noted in the previous section

Morena’s removal period has not yet begun. See 8 U.S.C. § 1231(a)(1)(B)(ii). 

Morena’s continued detention does not violate due process, and his Petition is

accordingly premature.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The Magistrate Judge’s Report and Recommendation (doc. 29) is

adopted and incorporated to the extent it is consistent with the

reasoning of this order. 

2. Morena’s Original Petition (doc. 1) is dismissed as moot. 

3. Morena’s Amended Petition for a Writ of Habeas Corpus (doc. 9) is

dismissed.

4. The clerk is directed to close the case file.

s/ John E. Jones III 

 John E. Jones III

United States District Judge

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