NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________________________________

WAYNE FISHER, :

: Civil Action No. 10-6369 (FSH)

Petitioner, :

:

v. : O P I N I O N

 :

OSCAR AVILES, et al., :

:

Respondents. :

________________________________:

APPEARANCES:

WAYNE FISHER, Petitioner, Pro Se

A# 078 420 244

235708

E-4N

Hudson County Correctional Center

35 Hackensack Avenue

Kearny, New Jersey 07032

HOCHBERG, District Judge

Petitioner, Wayne Fisher, is currently being detained by the

Department of Homeland Security (“DHS”), Immigration and Customs

Enforcement (“ICE”) at the Hudson County Correctional Center in

Kearny, New Jersey, pending his removal from the United States.1

On or about December 13, 2010, Fisher filed this Petition for

 Effective March 1, 2003, the Immigration and 1

Naturalization Service (“INS”) ceased to exist as an agency of

the Department of Justice, and its functions were transferred to

the Department of Homeland Security (“DHS”). See Homeland

Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov.

25, 2002). The Immigration and Customs Enforcement agency

(“ICE”) of the DHS is responsible for the interior investigation

and enforcement functions that formerly were performed by the

INS. 

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Writ of Habeas Corpus under 28 U.S.C. § 2241, in which he

challenges his mandatory detention pending removal proceedings as

unconstitutional. The petition seeks issuance of an Order to

Show Cause, as well as appointment of counsel.

Fisher brings this action against Oscar Aviles, Facility

Director at Hudson County Correctional Center; Christopher

Shanaham, Acting Field Office Director for Deportation and

Removal; John T. Morton, Assistant Secretary of the ICE; Janet

Napolitano, Secretary of the DHS and Eric Holder, United States

Attorney General, as the named party respondents (hereinafter

referred to as “the Government”) in this action. (See Petition

at Caption, ¶¶ 10-14). For the reasons stated below, this

petition for habeas relief is subject to summary dismissal

because mandatory detention pending completion of removal

proceedings has been held constitutionally permissible. See

Demore v. Kim, 538 U.S. 510 (2003).

I. BACKGROUND

Fisher is a native and citizen of Jamaica, who came to

United States in 2002. (Petition, ¶ 15). He admits that he is

being detained pending conclusion of his removal proceedings

pursuant to 8 U.S.C. § 1226(c). Fisher states that he is not

contesting his removal, that he has been detained under ICE

custody since June 3, 2010, and that he has not had an interim

custody review hearing. He also alleges, without any factual

2

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support, that the Consulate General of Jamaica will not issue

travel documents for Fisher in the reasonable and foreseeable

future. (Petition, ¶¶ 1, 2, 9, and 15).

 II. DISCUSSION

A. Standard of Review

Fisher seeks a writ of habeas corpus pursuant to 28 U.S.C. §

2241(c)(3). That section states that the writ will not be 2

extended to a prisoner unless “he is in custody in violation of

the Constitution or laws or treaties of the United States.” 28

U.S.C. § 2241(c)(3). Under 28 U.S.C. § 2243, “[a] court ...

entertaining an application for a writ of habeas corpus shall

forthwith award the writ or issue an order directing the

respondent to show cause why the writ should not be granted,

unless it appears from the application that the applicant or

person detained is not entitled thereto.”

A pro se pleading is held to less stringent standards than

more formal pleadings drafted by lawyers. See Estelle v. Gamble,

429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520

(1972). A pro se habeas petition and any supporting submissions

must be construed liberally and with a measure of tolerance. See

Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v.

Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United

 Fisher also asserts jurisdiction under the All Writs Act, 2

28 U.S.C. § 1651.

3

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States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert.

denied, 399 U.S. 912 (1970).

B. Jurisdiction to Grant Habeas Relief

As stated earlier, Fisher brings this habeas action under 28

U.S.C. § 2241(c)(3), which requires that the petitioner show that

“he is in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2241(c)(3). The

Court has subject matter jurisdiction over this petition because

Fisher is being detained within its jurisdiction at the time he

filed his petition, and because Fisher asserts that his continued

detention is not statutorily authorized and is constitutionally

impermissible because it violates due process under the Fifth

Amendment.

C. Relevant Statutory and Case Law Authority

Fisher admits that he is being held pursuant to the

mandatory detention statute under 8 U.S.C. § 1226(c), or § 236(c)

of the INA. This statute provides for the mandatory detention,

without bond while removal proceedings are pending, of those

aliens who committed certain enumerated categories of criminal

and other offenses.

Specifically, Title 8 of the United States Code, Section

1226 states:

§ 1226. Apprehension and detention of aliens

(a) Arrest, detention, and release. On a warrant issued by

the Attorney General, an alien may be ... detained pending a

decision on whether the alien is to be removed from the

4

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United States. Except as provided in subsection (c) and

pending such decision, the Attorney General-

(1) may continue to detain the arrested alien;

[or] may release the alien on-

(A) bond of at least $1,500 with security approved by,

and containing conditions prescribed by, the Attorney

General; or

(B) conditional parole....

(c) Detention of criminal aliens.

(1) Custody. 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 sentenced 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,

when the alien is released, without regard to whether

the alien is released on parole, supervised release, or

probation, and without regard to whether the alien may

be arrested or imprisoned again for the same offense.

(2) Release. The Attorney General may release an alien

described in paragraph (1) only if the Attorney General

decides pursuant to section 3521 of Title 18 that

release of the alien from custody is necessary to

provide protection to a witness, a potential witness, a

person cooperating with an investigation into major

criminal activity, or an immediate family member or

close associate of a witness, potential witness, or

person cooperating with such an investigation, and the

alien satisfies the Attorney General that the alien

will not pose a danger to the safety of other persons

or of property and is likely to appear for any

scheduled proceeding. A decision relating to such

release shall take place in accordance with a procedure

that considers the severity of the offense committed by

the alien.

8 U.S.C. § 1226.

5

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In other words, detention under § 1226(a) is discretionary

and requires individualized bond hearings, while detention under

§ 1226(c) is mandatory and does not provide for any bond hearing.

Both provisions apply to “pre-removal-order detainees,” that is,

to those aliens who are in the midst of their removal proceedings

and thus whose removal orders have not become “final.”

Section 1226(a) provides the Attorney General (or the DHS)3

with the discretionary authority to release an alien on bond or

conditional parole pending completion of removal proceedings. 

Under § 1226(a), an alien may be released where he can show, to

the satisfaction of the DHS/ICE, that he is not a flight risk or

a danger to the community. 8 C.F.R. § 236.1(c)(8). A similar

standard applies before the Immigration Judges and BIA. See

Matter of Guerra, 24 I&N Dec. 37, 38 (BIA 2006).

Under the mandatory detention statute, however, immigration

courts are without jurisdiction to redetermine the conditions of

custody of an alien in removal proceedings subject to 8 U.S.C. §

1226(c)(1), such as by setting bond. 8 C.F.R. §

1003.19(h)(2)(i)(D)(2008). An alien may request a Joseph hearing

before an immigration judge to determine if the alien is properly

 Pursuant to the Homeland Security Act of 2002, all 3

immigration functions vested in the Attorney general, with a few

exceptions, were transferred to the Secretary of the DHS. The

Attorney General has delegated his discretionary custody

redetermination authority to the Immigration Judges and the BIA. 

See Matter of Guerra, 24 I&N Dec. 37, 38 (BIA 2006). 

6

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included in the mandatory custody provision, pursuant to Matter

of Jospeh, 22 I.& N. Dec. 299 (BIA 1999) and 8 C.F.R. §

1003.19(h)(2)(ii). 

Once the removal order becomes “final,” the alien’s “removal

period” begins to run. Specifically, the “removal period” starts

on the latest of the following (1) the date when the order of

removal issued by an Immigration Judge (“IJ”) becomes

administratively final (that is, appeal to BIA was either taken

and ruled upon in the sense that the appeal was denied, or the

time to file such appeal simply expired); or (2) if the removal

order is judicially reviewed and if a court orders a stay of the

removal, the date of the court’s final order, or (3) if the alien

is detained or confined (except under an immigration process),

the date when the alien is released from confinement. See 8

U.S.C. § 1231(a)(1)(B).

Under Section 1231(a)(1)(A), the government has a 90-day

“removal period” to remove an alien. Detention during this 90-

day removal period is mandatory. Section 1231(a)(1)(c), however,

provides that this 90-day removal period may be extended, and the

alien may remain in detention during such extended period, if the

alien “acts to prevent the alien’s removal subject to an order of

removal.” 8 U.S.C. § 1231(a)(1)(c).

Moreover, even after the 90-day “removal period,” the

government may further detain the alien under 8 U.S.C. §

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1231(a)(6). However, the Supreme Court has held that aliens may

be detained under § 1231(a)(6) only for “a period reasonably

necessary to bring about that alien’s removal from the United

States.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001). 

Recognizing that its holding would lead to difficult judgment

calls in the courts, the Supreme Court “for the sake of uniform

administration in the federal courts” recognized a six-month

“presumptively reasonable period of detention.” Id. at 700-01. 

However, after establishing this “presumptively reasonable period

of detention,” the Supreme Court stressed that

after this 6-month period, o[nly if] 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. 

And for detention to remain reasonable, as the period of

prior post-removal confinement grows, what counts as the

“reasonably foreseeable future” conversely would have to

shrink. This 6-month presumption, of course, does not mean

that every alien not removed must be released after six

months. To the contrary, an alien may be held in

confinement until it has been determined that there is no

significant likelihood of removal in the reasonably

foreseeable future.

Id. at 701.

Moreover, no language in Zadvydas excluded or limited the

operation of the tolling-like function enunciated in 8 U.S.C. §

1231(a)(1)(c). Consequently, an alien who, during his

presumptive six-month Zadvydas-based period, takes actions

delaying his removal, cannot demand his release upon expiration

of these six months. See, e.g., Wang v. Carbone, No. 05-2386

8

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(JAP), 2005 WL 2656677 (D.N.J. Oct. 17, 2005)(calculating the

presumptive period excluding the period of non-cooperation and

relying on Riley v. Greene, 149 F. Supp.2d 1256, 1262 (D. Colo.

2001) and Sango-Dema v. District Director, 122 F. Supp.2d 213,

221 (D.Mass. 2000)). Rather, the period affected by the alien’s

actions is excluded from the six-month presumptive period

articulated in Zadvydas, causing a quasi-tolling.

Thus, “Zadvydas does not save an alien who fails to provide

requested documentation to effectuate his removal. The reason is

self-evident: the detainee cannot convincingly argue that there

is no significant likelihood of removal in the reasonably

foreseeable future if the detainee controls the clock.” Pelich

v. INS, 329 F.3d 1057, 1060 (9th Cir.2003).

D. The Issue of Mandatory Detention

Fisher asserts that his mandatory detention under § 1226(c)

violates due process because it is an unreasonably prolonged

detention. He seeks his release under supervision, or in the

alternative, a bond hearing to be conducted on this issue of his

release under supervision while his removal proceedings are

ongoing.

The Attorney General may release an alien detained under §

1226(c) only for narrow reasons not implicated here. See 8

9

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U.S.C. § 1226(c)(2). Further, an alien detained under § 1226(c) 4

is not afforded a bond hearing before an IJ, whereas a

noncriminal alien, who is detained under § 1226(a), is given such

a hearing. See 8 U.S.C. § 1226(a), (c). Consequently, Fisher,

as an alien detained under § 1226(c), does not have an

opportunity to show that he does not pose a danger to the

community or a flight risk to be released on bond. See §

1226(c).

The United States Supreme Court held in Demore v. Kim, 538

U.S. 510 (2003), that mandatory detention under 8 U.S.C. §

1226(c) during removal proceedings does not violate the

protections guaranteed under the Constitution. In Demore, a

lawful permanent resident filed a habeas petition challenging the

no-bail provision of § 1226(c), pursuant to which he had been

held for six months during the pendency of removal proceedings

against him. The Supreme Court held that detention of lawful

 Section 1226(c)(2) reads: The Attorney General may 4

release an alien described in paragraph (1) only if the Attorney

General decides pursuant to section 3521 of Title 18 that release

of the alien from custody is necessary to provide protection to a

witness, a potential witness, a person cooperating with an

investigation into major criminal activity, or an immediate

family member or close associate of a witness, potential witness,

or person cooperating with such an investigation, and the alien

satisfies the Attorney General that the alien will not pose a

danger to the safety of other persons or of property and is

likely to appear for any scheduled proceeding. A decision

relating to such release shall take place in accordance with a

procedure that considers the severity of the offense committed by

the alien.

10

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permanent residents during removal proceedings is

constitutionally permissible, even when there has been no finding

that they are unlikely to appear for their deportation

proceedings. Id. at 523-24. In doing so, the Court noted that

detention pending removal “serves the purpose of preventing

deportable criminal aliens from fleeing prior to or during their

removal proceedings, thus increasing their chance that, if

ordered removed, the aliens will be successfully removed.” Id. at

528.

However, the Supreme Court’s holding in Demore, as noted in

Madrane v. Hogan, 520 F. Supp.2d 654 (M.D. Pa. 2007), is “narrow[

] ... grounded in repeated reference” to the brevity of removal

proceedings. Id. at 664. In Demore, the Supreme Court

recognized that § 1226(c) was intended only to “govern [ ]

detention of deportable criminal aliens pending their removal

proceedings,” which the Court stressed typically “lasts roughly a

month and a half in the vast majority of cases in which it is

invoked, and about five months in the minority of cases in which

the alien chooses to appeal” his removal order to the BIA. 

Demore, 538 U.S. at 527-28 (emphasis in original).

D. Petitioner Is Not Entitled to Release from Detention

 Fisher challenges his mandatory detention under 8 U.S.C. §

1226(c) substantially on the ground that it violates his rights

to substantive and procedural due process. The petition plainly

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states on its face that Fisher’s removal proceedings are not yet

final.

This Court concludes that the United States Supreme Court’s

holding in Demore v. Kim, 538 U.S. 510 (2003) forecloses Fisher’s

constitutional challenge to his continued mandatory detention.

The custodial status of aliens who have committed crimes is

governed by 8 U.S.C. § 1226 (INA § 236). Section 1226(a) gives

the Attorney General discretion to arrest and detain an alien

pending removal proceedings and to release the alien on bond. 

Section 1226(b) gives the Attorney General discretion to revoke a

bond or parole under § 1226(a). By contrast, however, § 1226(c)

requires that aliens with certain enumerated criminal convictions

be detained pending removal proceedings. In particular, 

§ 1226(c) provides for the detention of criminal aliens who are

“deportable by reason of having committed any offense covered in

[8 U.S.C. § 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D)].” 8

U.S.C. § 1226(c)(1)(B). 

Here, Fisher admits in his petition that his detention is

governed by 8 U.S.C. § 1226(c)(1)(B), as a deportable alien

convicted of an aggravated felony whose removal proceedings are

not yet final. As stated in the previous section of this 5

 Under 8 U.S.C. § 1231, the government may detain an alien 5

subject to a final order of removal. Section 1231(a)(6)

provides, in pertinent part:

An alien ordered removed [1] who is inadmissible ...

12

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Opinion, the Supreme Court has held that the detention of an

alien pursuant to the no-bail provision under § 1226(c) does not

violate due process under the Fifth Amendment. DeMore, supra. 

The Supreme Court reaffirmed its “longstanding view that the

Government may constitutionally detain deportable aliens during

the limited period necessary for their removal proceedings.” 

Id., 538 U.S. at 526. The Court concluded that the mandatory

detention provision under § 1226(c) furthered the government’s

legitimate purpose of preventing aliens from fleeing before the

removal proceedings are completed, and that such detention would 6

be limited to a finite period of time generally needed for

completion of removal proceedings. Id. at 529-531.

The Supreme Court, however, did not set a temporal time

limit on the detention of an alien pending removal proceedings,

acknowledging that detention under § 1226(c) was typically short

[2] [or] removable [as a result of violations of status

requirements or entry conditions, violations of

criminal law, or reasons of security or foreign policy]

or [3] who has been determined by the Attorney General

to be a risk to the community or unlikely to comply

with the order of removal, may be detained beyond the

removal period and, if released, shall be subject to

[certain] terms of supervision ... .”

 The Court also acknowledged that “in adopting § 1226(c), 6

Congress had before it evidence suggesting that permitting

discretionary release of aliens pending their removal hearings

would lead to large numbers of deportable criminal aliens

skipping their hearings and remaining at large in the United

States unlawfully.” Kim, 538 U.S. at 528.

13

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in duration. Id. at 527-28 (distinguishing its decision in

Zadvydas with respect to detention under § 1231, by emphasizing

that detention under § 1226(c) had an obvious termination point

and that such confinement was generally brief). See also Contant

v. Holder, 352 Fed. Appx. 692, 694 (3d Cir. 2009)(where a preremoval-order petitioner is being detained pending a decision on

whether he is to be removed from the United States, there is no

indication that petitioner cannot be deported to his country of

origin following an unfavorable removability decision).

Moreover, while there may be legitimate concerns that due

process necessitates an individualized custody evaluation for

aliens who have been in detention pending lengthy removal

proceedings, the Government is not obligated under the Due

Process Clause “to employ the least burdensome means to 

accomplish its goal” in “dealing with deportable aliens.” 

Demore, 538 U.S. at 528.

In this case, there is no indication that Fisher has been

detained for an inordinately lengthy period of time, or that his

removal proceedings are substantially delayed. Fisher states

only that he has been in detention for six months at the time he

filed his petition. He does not allege any inordinate delays by

the DHS/ICE, although he does allege that he is not challenging

his removal. 

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Accordingly, this Court finds that Fisher has failed to

state any violation of federal statutory or constitutional law

respecting his mandatory detention pending removal proceedings. 

Therefore, his petition seeking release from detention must be

dismissed at this time.7

That leaves only the issue of bond hearings, which are

inapplicable to aliens like Fisher, detained under Section

1226(c). The Supreme Court observed in Demore v. Kim that the

fact of the prolonged detention does not entitle an alien to

individualized bond hearings if the alien “himself had requested

a continuance of his removal hearing.” Id. at 530. Consequently,

Fisher’s request for a bond hearing as provided under § 1226(a)

is without merit and will be denied at this time.

E. Case Law Relied Upon by Petitioner

The Court’s discussion would not be complete if the Court

overlooked the immigration cases and additional claims invoked by

Fisher. First, Fisher’s reliance on Zadvydas for his release

under supervision is misplaced because that case involved

individuals who had final orders of removal but whose removal

could not be effectuated. Here, as stated above, Fisher is a

pre-removal order alien subject to the mandatory detention

 The petition will be dismissed without prejudice to 7

Fisher renewing his application to the extent that he can show

inordinate delays by the Government that has perpetuated his

detention, which is not alleged or evident from the instant

petition.

15

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provision under § 1226(c). Thus, there is no indication that

petitioner cannot be deported to his country of origin following

entry of a final removal order. See Demore v. Kim, 538 U.S. at

528; Contant, 352 Fed. Appx. at 694. Moreover, Fisher has failed

to demonstrate that his detention has been unreasonably prolonged

by the Government to justify a bond hearing. 

Fisher also cites the following case law, which held that

prolonged mandatory detention under § 1226(c) raises serious

constitutional problems: Tijani v. Willis, 430 F.3d 1241, 1242

(9 Cir. 2005); Ly v. Hansen, 351 F.3d 263, 271-72 (6 Cir. th th

2003). However, Fisher declines to refer to the Third Circuit’s

ruling in Contant, which held that an alien’s lengthy pre-removal

order detention was not indefinite, and thus, not in violation of

due process. Indeed, Fisher does not face permanent detention

like the aliens in Zadvydas and Ly. Much to the contrary, Fisher

does not allege that he cannot obtain his release to the Jamaica

at any time, and therefore, he does not face the prospect of

indefinite detention.

Moreover, in all of the cases cited by Fisher, the

petitioners had been detained for a period of time significantly

longer than Fisher in this instance. See Tijani, 430 F.3d 1241

(two years and eight months); Ly, 351 F.3d 263 (about 17 months);

Scarlett v. U.S. Department of Homeland Sec., 632 F. Supp.2d 223

(W.D.N.Y. 2009)(five years); Fuller v. Gonzales, 2005 WL 818614

16

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(D.Conn. Apr. 8, 2005)(two years); Hyppolite v. Enzer, 2007 WL

1794096 (D.Conn. June 19, 2007)(15 months); Madrane v. Hogan, 520

F. Supp.2d 654 (M.D.Pa. 2007)(two years, and Government

challenging a waiver of admissibility which prolonged issuance of

final order of removal); Alli v. Decker, 644 F. Supp.2d 535

(M.D.Pa. 2009)(two petitioners detained for 9 months and 20

months); Bourguignon v. MacDonald, 2009 WL 3600379 (D.Mass. Oct.

30, 2009)(27 months); Uritsky v. Ridge, 286 F. Supp.2d 842 (E.D.

Mich. 2003)(11 months). None of these cases are binding on this

Court, and this Court, respectfully, does not find them

persuasive in any event, as the circumstances of their prolonged

detention are markedly different from the instant case.

In sum, this Court does not find any basis in the instant

case to depart from the express requirement of mandatory

detention under § 1226(c), as upheld in Demore v. Kim, and by the

Third Circuit in Contant v. Holder. Therefore, Fisher’s

application for habeas relief from mandatory detention and his

request for a bond hearing are dismissed without prejudice to his

bringing a new action should he be able to demonstrate

circumstances of indefinite detention and inordinate delays

perpetuated by the Government. Because this petition is being

dismissed, Fisher’s application for an Order to Show Cause or

preliminary injunctive relief will be denied as moot at this

time.

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III. CONCLUSION

Based upon the foregoing, the habeas petition seeking

petitioner’s release from detention pursuant to a bond hearing

pending a final order of removal is dismissed without prejudice. 

Further, the application for an Order to Show Cause is denied as

moot. An appropriate Order accompanies this Opinion.

 s/ Faith S. Hochberg 

 FAITH S. HOCHBERG

 United States District Judge

Dated: February 23, 2011

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