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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GARY ESTERMAN, :

: Civil Action No. 4:CV-05-847

Petitioner, :

:

v. : (Judge McClure)

:

THOMAS HOGAN, ET AL., :

: (A20 397 894)

Respondents. :

O R D E R

June 23, 2005

BACKGROUND:

On April 28, 2005, petitioner Gary Esterman, filed a petition under 28 U.S.C.

§ 2241 challenging his continued detention by Immigration and Customs

Enforcement (“ICE”). On May 2, 2005, we directed the government to show cause

within twenty days why the petition should not be granted. On June 13, 2005, after

receiving an enlargement of time, the government responded to the petition with

information from Esterman’s administrative file and requested that we dismiss

Esterman’s petition as premature. On June 20, 2005, Esterman filed a reply brief.

For the following reasons we will dismiss Esterman’s petition as premature.

Esterman is a native of the former Union of Soviet Socialist Republics.

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(Rec. Doc. No. 9, Ex. A.) On April 4, 1974, Esterman entered the United States as

a refugee. (Id.) Esterman’s status was adjusted to lawful permanent resident as of

October 17, 1989. (Id.) On June 22, 2001, Esterman was convicted in the United

States District Court for the Northern District of Illinois of the crimes of wire fraud,

engaging in monetary transactions in property derived from unlawful activities, and

money laundering in violation of 18 U.S.C. §§ 1343, 1957(a) and 1956(a)(1)(B)(i). 

(Rec. Doc. No. 9, Ex. B.)

In light of Esterman’s convictions, ICE commenced removal proceedings. 

Esterman’s notice to appear charged him as removable pursuant to INA §

237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an

aggravated felony. 

Next, Esterman applied for asylum, withholding of removal, and protection

under Article III of the Convention Against Torture. (Rec. Doc. No. 9, Ex. C.) 

On June 17, 2004, an IJ ordered Esterman removed from the United States to

Russia. (Id.) The IJ pretermitted Esterman’s application for asylum, denied his

request for protection under the Convention Against Torture, but granted his

request for withholding of removal under the INA. (Id.) ICE appealed the IJ’s

decision to the Board of Immigration Appeals (“BIA”). Although the government

does not indicate the date Esterman was taken into ICE custody, Esterman states

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that on July 21, 2004, thirty six months into his sentence, he was released from the

custody of the Bureau of Prisons and taken into ICE custody. (Rec. Doc. No. 1, at

5, ¶ 24.) On August 30, 2004, the BIA remanded the case to the IJ for further

action because of a technical error that impacted the completeness of the transcript.

(Rec. Doc. No. 9, Ex. D.) On September 30, 2004, in an order that carefully

detailed the IJ’s steps in verifying the completeness of the record of the original

June hearing, the IJ reissued his oral decision of June 17, 2004, and again granted

Esterman’s application for withholding of removal pursuant to INA § 241(b)(3). 

(Rec. Doc. No. 9, Ex. E.) ICE again appealed the IJ’s decision.

As noted above, on April 28, 2005, Esterman filed his petition with this court

challenging his detention while ICE’s appeal of the IJ’s decision remained pending

before the BIA. With the government’s June 13, 2005 response, we became aware

of the BIA’s May 12, 2005 decision sustaining ICE’s appeal. (Rec. Doc. No. 9,

Ex. F.) In the May 12, 2005, decision the BIA vacated the IJ’s decision to grant

Esterman the relief of withholding of removal and further ordered that Esterman be

removed from the United States to Russia. (Id.)

Although it is certainly unfortunate that technical malfunctions extended the

pendency of his matter before the BIA, Esterman filed his petition challenging his

detention while his matter was still before the BIA, and thus his detention as an alien

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convicted of an aggravated felony was both proper and not indefinite. See 8

U.S.C. § 1226(c) (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); see e.g.,

Pisciotta v. Ashcroft, 311 F. Supp. 2d 445, 454-56 (D.N.J. 2004) (custody of an

alien with pending removal proceedings shall last only as long as the duration of the

removal proceedings).

Having received Esterman’s complete administrative record, it is clear that

his challenge to his detention is without legal merit. On May 12, 2005, Esterman’s

order of removal became administratively final when the BIA ordered him removed

from the United States. It was on that date that Esterman’s removal period began.

INA § 241(a)(1)(B)(2), 8 U.S.C. § 1231(a)(1)(B)(2). The United States Supreme

Court in Zadvydas v. Davis, 533 U.S. 678 (2001), recognized six months as the

presumptively reasonable period of post order detention of an alien. ICE’s

detention of Esterman is currently within his ninety day removal period, INA §

241(a)(1)(A), 8 U.S.C. §1231(a)(1)(A), and therefore, his petition challenging

detention is premature.

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NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Esterman’s petition under 28 U.S.C. § 2241 challenging his detention is

dismissed as premature.

2. The clerk is directed to close the case file docketed to Civil Action No.

4:CV-05-847.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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