UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

:

DEXTER RODNEY, :

Petitioner : No. 4:CV-09-0986

:

vs. : (Petition Filed 5/26/09)

:

: (Judge Muir)

CRAIG LOWE, et al., :

:

Respondents :

MEMORANDUM AND ORDER

April 30, 2010

Petitioner, a detainee of the United States Immigration

and Customs Enforcement (“ICE”), currently confined in the

Clinton County Correctional Facility, McElhattan, Pennsylvania,

filed the above captioned petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241. Rodney challenges his continued

detention by ICE. Because petitioner's continued detention is

constitutionally permissible, the petition will be denied.

I. Background

Petitioner, a native and citizen of Guyana, entered the

United States on or about February 27, 1996, as a lawful

permanent resident alien. (Doc. 8, Ex. 2, Notice to Appear). 

On February 11, 2004, following a jury trial, petitioner

was convicted in the United States District Court for the

Case 4:09-cv-00986-MM-DB Document 14 Filed 04/30/10 Page 1 of 13
Southern District of New York of bank fraud (Count 1) and theft

of government property (Count 2). (Doc. 8, Ex. 5, United States

v. Rodney, 1:03-cr-0819-SWK-1, Judgment in Criminal Case). 

On May 14, 2004 petitioner was sentenced to a five (5)

month term of imprisonment on each count of the Indictment and

a three (3) year term of supervised release which required

Petitioner to serve a five (5) month term of home confinement

as one of the conditions of supervised release. Id. 

On March 21, 2005, the United States Court of Appeals for

the Second Circuit affirmed petitioner’s conviction, but

remanded the case pursuant to United States v. Crosby, 397 F.3d

103 (2d Cir. 2005), because the district court “treated the

federal Sentencing Guidelines as mandatory. (Doc. 8, United

States v. Rodney, 124 Fed.Appx. 67, 68 (2d Cir. 2005). 

On April 14, 2005, petitioner’s probation officer

notified the district court that petitioner had violated the

terms of his supervised release. (Doc. 8, Ex. 4, United States

v. Rodney, 1:03-cr-0819-SWK-1, docket sheet at pp. 6-7). 

On August 15, 2005, Rodney was resentenced in accordance

with the remand from the Second Circuit. Id. at p. 10. In

addition to his sentence, petitioner was found guilty of

2

Case 4:09-cv-00986-MM-DB Document 14 Filed 04/30/10 Page 2 of 13
violating the terms of his supervised release and was sentenced

to an additional year of supervised release, in addition to the

term he was currently serving. Id. Rodney’s term of supervised

release was, therefore determined to expire on July 8, 2008,

instead of July 8, 2007. Id. 

On November 9, 2006, petitioner was sentenced to an eight

month term of imprisonment for again violating the terms of his

supervised release. Id. at p. 12. Petitioner surrendered on

November 13, 2006, id., and his sentence expired on July 12,

2007. 

In a Notice to Appear dated July 12, 2007, petitioner was

charged with removability pursuant to 8 U.S.C. §

1227(a)(2)(A)(iii), as an alien convicted of an aggravated

felony as defined in 8 U.S.C. § 1101(a)(43)(M)(i)1, at any time

after admission. (Doc. 8, Ex. 2, Notice to Appear). The Notice

to Appear was based on petitioner's 2004 bank fraud conviction

Id. That same day, Department of Homeland Security (DHS) took

1An aggravated felony is defined, in pertinent part, in

8 U.S.C. § 1101(a)(43)(M)(i) as “an offense that involves

fraud or deceit in which the loss to the victim or victims

exceeds $10,000.” 

3

Case 4:09-cv-00986-MM-DB Document 14 Filed 04/30/10 Page 3 of 13
Rodney into custody, pending a final determination of his case

by the immigration judge. (Id.). 

By Order dated November 6, 2007, an Immigration Judge

found petitioner removable as charged. (Doc. 8, Ex. 6, Oral

Decision of Immigration Judge). On November 26, 2007,

Petitioner filed a timely appeal to the Board of Immigration

Appeals (“BIA”). (Doc. 1, petition). 

On March 6, 2008, finding that Rodney established a claim

of ineffective assistance of counsel, in counsel’s failure to

challenge Rodney’s removability based on the aggravated felony

listed in the Notice to Appear, the BIA vacated the Immigration

Judge’s November 6, 2007 decision and remanded the action to the

Immigration Judge for further proceedings. (Doc. 8, Ex. 7, BIA

Decision). 

On April 11, 2008, the Immigration Judge held that the

DHS failed to establish the charge of removability by clear and

convincing evidence in that it failed to establish a loss in

excess of $10,000. (Doc. 8, Ex. 8, Ruling on Aggravated Felony

and Order of Immigration Judge). As a result, the Immigration

Judge dismissed the aggravated felony ground of removal, and

terminated the removal proceedings. Id. 

4

Case 4:09-cv-00986-MM-DB Document 14 Filed 04/30/10 Page 4 of 13
On May 6, 2008, the government filed an appeal to the

BIA. (Doc. 1, petition). 

On July 24, 2008, petitioner filed a petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2241 with this Court. 

See Rodney v. Mukasey, No. 4:CV-08-1386 (M.D. Pa.). Rodney 

challenged his continued detention by DHS while his immigration

proceedings were still pending. Id. By Memorandum and Order

dated February 20, 2009, the petition for writ of habeas corpus

was dismissed as premature because Rodney’s ninety-day removal

period had not yet commenced under 8 U.S.C. 1231(a)2. Id. 

On July 28, 2008, the BIA sustained the government’s

appeal and found that the DHS had established the charge of

removability by clear and convincing evidence. (Doc. 8, Ex. 9,

BIA Decision). The BIA then remanded the matter back to the

Immigration Judge for further proceedings in accordance with the

BIA’s decision, and entry of a new decision. Id.

On September 8, 2008, petitioner’s case was scheduled to

be heard by the Immigration Court for the first time since

2On March 4, 2009, petitioner filed an appeal of this

Court’s decision to the United States Court of Appeals for the

Third Circuit, which was dismissed on July 16, 2009. See

Rodney v. Atty. Gen. USA, No. 09-1660 (3d Cir. 2009).

5

Case 4:09-cv-00986-MM-DB Document 14 Filed 04/30/10 Page 5 of 13
remand from the BIA. (Doc. 8, Ex. 10, Declaration of Susan B.

Sheehan, Associate General Counsel for the U.S. Dept. of

Justice, Executive Office for Immigration Review (“EOIR”), at ¶

4). However, because petitioner’s attorney failed to appear,

the matter was adjourned until September 16, 2008. Id. 

On September 16, 2008, petitioner’s case was again

adjourned to October 7, 2008, to allow his attorney to file a

Form I-589 Application of Withholding of Removal (8 U.S.C. §

1231(b)(3)(4)(A)) and relief under Article III of the United

Nations Convention Against Torture (8 C.F.R. § 1208.16, et

seq.)(CAT). Id. at ¶ 3. 

On October 7, 2008, petitioner’s attorney requested and

obtained an adjournment of two additional weeks to file

petitioner’s Form I-589. Id. at ¶ 6. 

On October 28, 2008, the Immigration Court conducted a

hearing on petitioner’s applications for Withholding of Removal

and Relief pursuant to CAT. (Doc. 8, Ex. 12 IJ Decision (on

Remand); Ex. 13, IJ Order). The Immigration Judge denied

petitioner’s applications and ordered petitioner removed. Id. 

On November 28, 2008, petitioner filed an appeal to the

BIA, which was dismissed on March 12, 2009, resulting in an

6

Case 4:09-cv-00986-MM-DB Document 14 Filed 04/30/10 Page 6 of 13
administratively final order of removal. (Doc. 8, Ex. 14, BIA

Decision).

On April 13, 2009, Rodney petitioned the Third Circuit

Court of Appeals for judicial review of his removal proceedings.

(Doc. 8, Ex. 1, Rodney v. Mukasey, No. 09-2043, General Docket,

Third Circuit Court of Appeals). 

On May 1, 2009, the Third Circuit ordered a stay of

petitioner’s removal. Id. 

On April 30, 2009, the government filed a motion to

dismiss the case for lack of jurisdiction. Id. 

On June 23, 2009, the government’s motion to dismiss was

referred to the merits panel for review, where it remains

pending. Id. 

On June 17, 2009, ICE officials conducted a Post Order

Custody Review (“POCR”), and issued a Decision to Continue

Detention. (Doc. 8, Ex. 15, Decision to Continue DetentionStay). In support of the decision to continue petitioner’s

detention, ICE Field Office Director, Thomas Decker, informed

petitioner that due to his history of criminal convictions and

arrests:

7

Case 4:09-cv-00986-MM-DB Document 14 Filed 04/30/10 Page 7 of 13
[I]t appears that you would present a threat to

society if you were released and it is not clearly

evident that you would appear for removal as

required. Additionally, ICE is in possession of a

valid travel document for your removal from the

United States. ...

A stay of removal has been granted in your case.

If your stay has not been lifted within one year,

you will be scheduled for a Post-Order Custody

Review (POCR) and served with a Notice to Alien of

File Custody Review. If your stay is lifted within

one year, a new 90-day removal period will begin

on the date that the stay is lifted. If you are

not removed within that 90-day period, a

Post-Order Custody [R]eview will be conducted at

the completion of the new removal period.

Id. 

 

II. Discussion

Detention, release, and removal of aliens ordered removed

is governed by the provisions of 8 U.S.C. §1231. Under

§1231(a), the Attorney General has 90 days to remove an alien

from the United States after his order of removal, during which

time detention is mandatory. Section 1231(a)(1)(B) specifically

provides: 

The removal period begins to run on the latest of

then following:

(i) The date the order of removal

becomes administratively final.

8

Case 4:09-cv-00986-MM-DB Document 14 Filed 04/30/10 Page 8 of 13
(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 removal period, if the alien remains in

the United States, his post-removal-period detention may be

continued only as long as “reasonably necessary” to effectuate

his removal from the United States. Zadvydas v. Davis, 533 U.S.

678, 689 121 S.Ct. 2491, 2498 (2001).

Because Rodney’s removal has been stayed by the Court of

Appeals for the Third Circuit while the Court reviews his

challenge to removal, petitioner is not entitled to relief from

this Court. Pursuant to 8 U.S.C. § 1231(a)(1)(B)(ii) his

removal period has yet to commence. See Vasquez v. ICE, 160 Fed.

Appx. 199, 201 (3d Cir.2005)(per curiam)

(nonprecedential)(finding that when a stay of removal is

pending, the removal period has not yet begun); see also

Casas-Castrillon v. Department of Homeland Security, 535 F.3d

942 (9th Cir.2008)(holding that when a circuit court has granted

9

Case 4:09-cv-00986-MM-DB Document 14 Filed 04/30/10 Page 9 of 13
a stay of removal, “the removal period under § 1231(a) does not

begin until [the circuit court] denies the petition and removes

the stay of removal.”). As section 1231(a)(1)(B)(ii) provides

that the removal period begins to run from the date of the

court's final order, if the removal order “is judicially

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

alien,” petitioner's removal period will commence when the Court

of Appeals for the Third Circuit decides his petition for review

(and assuming it is denied). Accordingly, Petitioner's challenge

to his detention under Zadvydas3 is premature.

3In Zadvydas v. Davis, 533 U.S. 678 (2001), the United

States Supreme Court addressed the issue of whether

§1231(a)(6) authorizes the Attorney General to detain a

removable alien indefinitely beyond the 90 day removal period

or only for a period reasonably necessary to effectuate the

alien’s deportation. Reasoning that the indefinite detention

of aliens “would raise serious constitutional concerns,” the

Court concluded that the statute “limits an alien’s postremoval-period detention to a period reasonably necessary to

bring about the alien’s removal from the United States. It

does not permit indefinite detention.” Id. at 2498. The

Court asserted that “once removal is no longer reasonably

foreseeable, continued detention is no longer authorized by

statute.” Id. at 2503. In this case as stated above, the

removal period has not yet commenced to run because there is

no final order of removal in light of the stay issued by the

Court of Appeals for the Third Circuit. 

10

Case 4:09-cv-00986-MM-DB Document 14 Filed 04/30/10 Page 10 of 13
Nor can Rodney mount a due-process challenge to his

continued detention pending a decision from the Court of Appeals

for the Third Circuit. In Oyedeji v. Ashcroft, 332 F.Supp.2d 747

(M.D.Pa.2004)(Vanaskie, J.), the court recognized such a claim,

reasoning that the “price for securing a stay of removal should

not be contin[ued] incarceration,” and ruling that the Due

Process Clause of the Fifth Amendment requires that a criminal

alien be afforded an opportunity to be heard in circumstances

like Rodney’s. Id. at 753-754. However, such a claim would fail

here as the record reveals that ICE's June 17, 2009, decision

afforded him an individualized determination on his request for

release pending the execution of his final order of removal. As

noted, ICE determined that Rodney was a threat to society and

that ICE was currently in the possession of a valid travel

document to effect his removal should his stay be lifted. Based

on these facts, the court is satisfied that petitioner was

provided with due process. Therefore, his detention is

constitutionally permissible. Accordingly, the petition for

writ of habeas corpus will be denied. 

Case 4:09-cv-00986-MM-DB Document 14 Filed 04/30/10 Page 11 of 13
An appropriate Order accompanies this Memorandum

Opinion.

s/Malcolm Muir 

MUIR

United States District Judge

12

Case 4:09-cv-00986-MM-DB Document 14 Filed 04/30/10 Page 12 of 13
UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

:

DEXTER RODNEY, :

Petitioner : No. 4:CV-09-0986

:

vs. : (Petition Filed 5/26/09)

:

: (Judge Muir)

CRAIG LOWE, et al., :

:

Respondents :

ORDER

April 30, 2010

For the reasons set forth in the accompanying Memorandum,

IT IS HEREBY ORDERED THAT:

1. The petition for writ of habeas corpus

is DENIED.

2. The Clerk of Court is directed to CLOSE

this case.

s/Malcolm Muir 

MUIR

United States District Judge

Case 4:09-cv-00986-MM-DB Document 14 Filed 04/30/10 Page 13 of 13