2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-20-2009

Castellanos v. Mukasey

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4665

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Recommended Citation

"Castellanos v. Mukasey" (2009). 2009 Decisions. Paper 979.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/979
*

 Amended Pursuant to Fed. R. App. Proc. 43(c)

** The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals

for the Ninth Circuit, sitting by designation.

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-4665

 

JUAN OSMIN CASTELLANOS

#A93 289 308

v.

ERIC H. HOLDER JR.*

, 

Attorney General of the United States; 

JANET NAPOLITANO*

, 

Secretary of the Department of Homeland Security; 

SCOTT WEBER, 

U.S. I.C.E. Field Office Director for the District of New Jersey; 

EDMOND C. CICCHI, 

Warden of the Middlesex County Adult Correctional Facility, New Brunswick, New

Jersey

Juan Osmin Castellanos, Appellant

 

On Appeal from the United States District Court

for the District of New Jersey

D.C. Civil Action No. 2-08-cv-04474

(Honorable Susan D. Wigenton)

 

Argued May 11, 2009

Before: AMBRO, ROTH, and ALARCÓN,** Circuit Judges.
2

(Filed: July 20, 2009)

 

Michael V. Gilberti, Esq. [ARGUED]

Epstein & Gilberti

21 East Front Street, Suite 210

Red Bank, New Jersey 07701

Counsel for Appellant

Peter G. O’Malley [ARGUED]

Office of United States Attorney

970 Broad Street, Room 700

Newark, New Jersey 07102

Counsel for Appellees

 

OPINION OF THE COURT

 

ALARCÓN, Circuit Judge.

Juan Osmin Castellanos appeals from the District Court’s decision denying his

application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Based upon

our review of the record, we conclude that the District Court did not err in finding that the

application for a writ of habeas corpus is premature, as there is no final order of removal. 

Accordingly, we will affirm the District Court’s order.

I

Castellanos, a native of El Salvador, entered the United States in 1987 without

inspection. On August 29, 1995, he pleaded guilty to a charge of rape in the third degree

in a New York state court. He served 20 days in jail and one year on probation. On April
1 1 Castellanos’s application for asylum is not part of the record on appeal.

3

5, 2000, an Immigration Judge (“IJ”) in New York, New York ordered that Castellanos be

removed from the United States (the “April 5, 2000 removal order”). On March 2, 2005,

Castellanos was taken into custody by agents of the Department of Homeland Security

(“DHS”). On March 19, 2005, he left the United States and returned to El Salvador. 

II

On August 12, 2005, Castellanos was apprehended at the border in Texas while

trying to re-enter the United States. He was convicted of illegal entry into the United

States in violation of 8 U.S.C. §1326(a) in the District Court for the Western District of

Texas. He was sentenced to 37 months in prison and 3 years of non-reporting supervised

release. The April 5, 2000 removal order was reinstated on August 12, 2005 by the DHS. 

On April 16, 2008, Castellanos completed his prison term for illegal re-entry into the

United States. He was immediately taken into custody in El Paso, Texas by United States

Immigration and Customs Enforcement (“ICE”). He was moved to a detention facility in

New Jersey. 

III

A

In October 2006, Castellanos filed an application for asylum.1

 Upon being taken

into custody on April 16, 2008, his asylum case was referred to the Immigration Court in

New York which issued the April 5, 2000 removal order.
2

 Section 2241 provides 

Writs of habeas corpus may be granted by the Supreme Court,

any justice thereof, the district courts and any circuit judge

4

The record on appeal reflects that Castellanos’s application for asylum was

transferred from New York to the Immigration Court in Newark, New Jersey. That court

has jurisdiction over the New Jersey detention center where Castellanos is currently in

custody. 

B

On June 2, 2008, Officer James Hutchinson conducted a hearing in Newark, New

Jersey, to determine whether Castellanos had a reasonable fear of torture if he were to be

returned to El Salvador. In his application for asylum, Castellanos claimed to have

witnessed the assassination of a mayor in June 2005, while he was living in El Salvador. 

He contended that the assassins subsequently tried to kill him. On June 4, 2008, the DHS

issued Officer Hutchinson’s report. He concluded that Castellanos failed to show a

reasonable fear of persecution or torture if returned to El Salvador. Castellanos requested

review of Officer Hutchinson’s determination by an IJ. On June 18, 2008, a hearing was

held before an IJ in Newark, New Jersey. The IJ ordered that Castellanos be removed on

June 23, 2008 (the “June 23, 2008 removal order”). 

C

On June 26, 2008, Castellanos filed an application for a writ of habeas corpus

pursuant to 28 U.S.C. § 22412

 in the Eastern District of New York. In his application,
within their respective jurisdictions. 

28 U.S.C. § 2241(a).

5

Castellanos claimed that: (1) he was denied a reasonable fear hearing in August 2005

when he re-entered the country illegally; (2) his application for asylum was unreasonably

denied; (3) his continued detention is unconstitutional; (4) the court must stay his

removal; and, (5) the Eastern District of New York should review the June 23, 2008

removal order. 

On July 1, 2008, the Eastern District of New York ordered the United States

Attorney’s Office (the “USAO”), to file a response to the application for a writ of habeas

corpus. It also denied Castellanos’s request to stay his deportation pending resolution of

the habeas proceedings. On July 7, 2008, Castellanos requested that the Eastern District

of New York stay his removal which was scheduled to occur within two days. On July 8,

2008, the USAO filed a letter with the Eastern District of New York which provided that

Castellanos would not be removed while his request for a stay of removal was pending. 

D

The Eastern District of New York conducted telephone conferences with the

parties on July 7 and July 8, 2008. During these conferences, Castellanos argued that 

the Court should transfer the portion of the petition

challenging the Immigration Order to the Second Circuit –

even though the Immigration Order was issued in Newark,

New Jersey – because the Execution of the Final Order took

place within the Second Circuit, and because the petitioner
6

had been domiciled and owned property within the Second

Circuit. 

On July 9, 2008, the Eastern District of New York issued the following order:

[T]he Court has determined that it lacks jurisdiction to review

[Castellanos’s] removal order or determine whether petitioner

is entitled to a stay of his removal order. Thus, as agreed

upon by both parties on the record during the Court’s

telephone conference on July 8, 2008, the Court transfers that

portion of the petition to the Court of Appeals for the Second

Circuit.

The Eastern District of New York did not rule on the question whether Castellanos’s

detention should continue. 

Castellanos filed a petition for review of his removal order on July 10, 2008 in the

United States Court of Appeals for the Second Circuit. On July 14, 2008, he filed a

motion for a stay of his deportation pending a hearing of his habeas corpus claims in the

Second Circuit. On July, 22, 2008, the USAO file a letter in response, stating it did not

oppose the motion for a stay of removal.

The USAO filed a response to the application for a writ of habeas corpus in the

Eastern District of New York on July 15, 2008. It argued that the Eastern District of New

York lacked jurisdiction over the custody claims remaining in that matter. Castellanos

filed a reply on July 17, 2008 in the Eastern District of New York. 

On August 12, 2008, Castellanos filed a motion seeking his release on bail in the

Eastern District of New York. On August 16, 2008, he filed a motion to expedite the

hearing on his bail motion. 
7

On September 8, 2008, the Eastern District of New York issued an order holding

that “this Court lacks jurisdiction over petitioner’s bail and remaining claims. The clerk

of the Court is therefore directed to transfer the petition to the United States District Court

for the District of New Jersey for further proceedings.” The Eastern District of New York

explained its ruling as follows:

Since the warden at the [Hudson County Jail] is the custodian

of plaintiff and is the only proper respondent, jurisdiction over

petitioner’s bail application and his remaining claims lies only

in the United States District Court for the District of New

Jersey, which is the district of petitioner’s confinement. . . .

Accordingly, it is appropriate to transfer petitioner’s bail

application and remaining claims, i.e. those claims not

previously transferred to the United States Court of Appeals

for the Second Circuit, to the United States District Court for

the District of New Jersey.

On September 8, 2008, the Second Circuit issued the following order:

1. The above-captioned petition for review is hereby

dismissed with prejudice and without costs or fees to any

party, pursuant to Rule 42(b) of the Federal Rules of

Appellate Procedure;

2. The June 23, 2008 order of the immigration judge (“IJ”)

finding that Petitioner . . . does not possess a “reasonable

fear” of persecution or torture if returned to El Salvador

[the June 2008 Removal Order] is hereby vacated. This

matter is hereby remanded to the IJ for further proceedings

pursuant to 8 C.F.R. §§ 208.31 and 241.8(e).

3. On remand, Castellanos shall be permitted the opportunity

to file an application for deferral of removal under the

United Nations Convention Against Torture and Other

Cruel, Inhumane or Degrading Treatment or Punishment

(“CAT”), 1465 U.N.T.S. 85, adopted Dec. 10, 1984, S.

Treaty Doc. No. 100-20 (1988).

4. Nothing in this Stipulation and Order of Dismissal and

Remand limits the authority of the IJ or the Board of
8

Immigration Appeals to grant or deny CAT relief sought

by on any appropriate ground or for any appropriate

reason.

5. The execution of Castellanos’s August 23, 2005 [sic]

reinstated removal order shall be stayed pending a final

administrative decision on his CAT application as

provided in 8 C.F.R. §§ 208.31 and 241.8(e).

A hearing on Castellanos’s Convention Against Torture claim was held on January

14, 2009 in Newark, New Jersey before an IJ. The claim was denied. Castellanos

appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”). The BIA

dismissed Castellanos’s appeal on June 4, 2009.

E

The custody and bail issues raised by Castellanos were set for oral argument

before the New Jersey District Court on November 5, 2008. At that hearing, Castellanos

contended that 

[The Zadvydas v. Davis case] stands for the proposition that

the proper way to bring this kind of application is through a

habeas petition. [533 U.S. 678 (2001)]. And second, it says

that once you get past the six-month period, the Court has to

review the reasonableness of the projected [period before

removal will occur]. 

He argued that he should be released on bail because he was not a danger to the

community or a flight risk. On November 12, 2008, the New Jersey District Court held

that the application for habeas corpus relief was prematurely filed due to the fact that on

September 8, 2008, the Second Circuit vacated the June 23, 2008 removal order, issued

by an IJ in Newark, New Jersey, and stayed the April 5, 2000 removal order, issued by an
9

IJ in New York, New York and reinstated by the DHS on August 12, 2005. The New

Jersey District Court denied the application without prejudice. 

Castellanos filed a timely notice of appeal in this Court on November 25, 2008. 

The New Jersey District Court had jurisdiction under 28 U.S.C. § 2241 over Castellanos’s

application for a writ of habeas corpus. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1291 because the appeal is from a final order denying Castellanos’s application for

habeas corpus relief. 

II

A

In his appeal to this Court, Castellanos contends that the New Jersey District Court

erred in “holding that Mr. Castellanos’[s] removal Order was not in force because the

government never reinstated the original removal order . . . and [] in failing to release Mr.

Castellanos on bail and denying his petition for a writ of habeas corpus after his

incarceration for more than 180 days.” This Court exercises plenary review over the

district court’s legal conclusions when an application for habeas corpus relief has been

denied without an evidentiary hearing. Bakhtriger v. Elwood, 360 F.3d 414, 417 (3d Cir.

2002). 

B

In Zadvydas, the United States Supreme Court reviewed the legality of the

detention of two aliens for more than six months after a final order of removal had been

issued against them. The record showed that the United States Government was unable to
3

 As such, though Castellanos’ detention was classified under § 1231(a)(6), that

section does not directly apply because it requires a final order of removal. Section

1226(a), which authorizes detention “pending a decision on whether an alien is to be

removed from the United States,” is the correct provision here.

10

find countries that would accept them. 533 U.S. at 684-686. Castellanos contends that he

is entitled to release on bail pending the outcome of the review of his removal order

because he has been detained for more than six months and his removal is unforeseeable,

that is, indefinite. We disagree. The Supreme Court held in Zadvydas that an alien’s

detention for more than six months after the issuance of a final order of removal is

presumptively unreasonable. 533 U.S. at 701. 

Castellanos’s circumstances are clearly distinguishable from those presented to the

Supreme Court in Zadvydas. In Zadvydas, the Immigration Courts had issued final orders

of removal. Id. at 684-686. In this matter, the April 5, 2000 removal order was stayed by

the Second Circuit. Accordingly, a final order of removal has not been issued.3

In addition, Castellanos’ detention period is not “indefinite” for three reasons. 

(1) Castellanos “is not stuck in a ‘removeable-but-unremoveable limbo,’ as the

petitioners in Zadvydas were.” Prieto-Romero v. Clark, 534 F.3d 1053,

1063 (9th Cir. 2008). To the contrary, the Government is ready and willing

to remove Castellanos but must wait for a final order of removal to do so

legally.
11

(2) While Castellanos’ detention lacks a certain end date, the end is still

reasonably foreseeable – the completion of removal proceedings. See

Zadvydas, 533 U.S. at 699.

(3) Castellanos himself has requested the continuance of his removal hearing. 

See Demore v. Kim, 538 U.S. 510, 530–31 (2003). 

For the foregoing reasons, we affirm the District Court’s order.