NOT FOR PUBLICATION CLOSED

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

 :

MANUEL CALDERON, :

 : Civil Action No.

Petitioner, : 10-3398 (FSH)

 :

v. : O P I N I O N 

 :

ERIC H. HOLDER, JR., et al., :

 :

Respondents. :

_______________________________:

 

Faith S. Hochberg, District Judge:

On July 2, 2010, Petitioner, a native of Columbia who entered

the United States in 1988, filed the instant Petition for a Writ of

Habeas Corpus (hereinafter “Petition”), pursuant to 28 U.S.C. §

2241, challenging his upcoming removal to Columbia and the

detention by the Department of Homeland Security (hereinafter

“DHS”) which is to precede such removal. 1

For the reasons set forth below, the Court will deny the

Petition.

1

The Homeland Security Act of 2002, 6 U.S.C. §§ 101-557, P.L.

107-296, 116 Stat. 2135 (Nov. 25, 2002), created the Bureau of

Citizenship and Immigration Services (“BCIS”) within the Department

of Homeland Security. See 6 U.S.C. § 271(a). The Act transferred

the functions of the Commissioner of the Immigration and

Naturalization Service (“INS”) to the Director of BCIS, see 6

U.S.C. § 271(b), and abolished INS. See 6 U.S.C. § 291.

Accordingly, DHS replaced INS on March 1, 2003.

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BACKGROUND

While the Petition is rather lengthy, the gist of the

statements and allegations made therein can be reduced to the

following:

Petitioner entered the United States in January 1988, and – in

1995 – pled guilty (and was sentenced, upon that plea, by the

United States District Court for the Eastern District of New York)

to a federal prison term; that plea and sentence were based on the

charges of attempted delivery of 5.8 kilogram of 86% pure cocain. 

See Pet’s Ex. A, Docket Entry No. 1-1. 

In 2000, Petitioner was arrested on state charges (filed by

the State of Florida) based on a murder that took place in 1992. 

While being acquitted on the murder charges, Petitioner was

eventually convicted on conspiracy charges associated with that

murder; Petitioner’s incarceration associated with conviction on

these conspiracy charges expired on August 1, 2010. See Docket 2

Entry No. 1, at 5-6. 

During the interim between his initial acquittal and later

conviction on Florida conspiracy charges, Petitioner was ordered

removed by his immigration judge; Petitioner’s appeal to the Board

 Petitioner asserts that his criminal proceedings initially 2

resulted in a mistrial, and he was acquitted on re-trial;

however, the appellate level of Florida state courts reversed

that acquittal and reinstated the conspiracy charges, which

eventually resulted in the prison term Petitioner has just

completed. See Docket Entry No. 1, at 5-6. 

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of Immigration Appeals was denied, and Petitioner’s application to

the United States Court of Appeals for the Third Circuit

challenging that denial was dismissed (and the Supreme Court of the

United States denied Petitioner certiorari as to that dismissal). 

See id. at 5-7. 

Fighting his removal, Petitioner filed a coram nobus

application with the Eastern District of New York and an appeal

with the Florida courts. See id. at 7. Meanwhile, Petitioner

seeks this Court’s order staying his removal and releasing him from

confinement; he explains that he seeks such order because “he is

afraid he will be deported before the direct appeal in his Florida

case and the Coram Nobus petition . . . are decided.” Id. at 7. 3

Petitioner maintains as the jurisdictional basis for his

instant application that this Court can issue a habeas writ to

Petitioner because “[b]oth decisions [i.e., the decisions

 Since Petitioner asserts that he “is in desperate need of 3

time to fully litigate the Coram Nobus petition . . . and his

direct appeal in his Florida case,” Docket Entry No. 1, at 8,

this Court is not entirely clear as to why Petitioner also seeks

release from confinement, since indeed it appears that the time

needed to litigate these actions is identical if Petitioner is

held in DHS custody or released on bail or parole. Similarly,

Petitioner’s explanation that he needs time to obtain a decision

of the Eastern District of New York and Florida court appears

half-hearted at best, since Petitioner’s reference to his need to

litigate these matters “fully” suggests that Petitioner is

seeking delay of removal until the Second Circuit and the Supreme

Court of the United States would rule on his coram nobus, and the

Supreme Court would deny him certiorari as to his Florida

proceedings. However, these observations are not dispositive to

the issues presented in this matter and, therefore, the Court’s

analysis does not depend on veracity of Petitioner’s assertions.

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anticipated to be issued by the Florida courts and by the Eastern

District of New York,] are not likely to come down this year,” id.

at 7, and – moreover – these pending matters “are not likely to be

decided . . . in the [foreseeable] future.” Id. at 2. 

JURISDICTION

Under 28 U.S.C. § 2241(c), habeas jurisdiction “shall not

extend 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). A federal court has subject matter

jurisdiction under § 2241(c)(3) if two requirements are satisfied:

(1) the petitioner is “in custody,”; and (2) the custody could be

“in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3); see also Maleng v. Cook, 490 U.S.

488, 490 (1989). This Court has subject matter jurisdiction over

the instant Petition under § 2241 because Petitioner either already

became or will become detained within its jurisdiction and he

asserts that his detention is not statutorily authorized and

violates his constitutional rights. 

STANDARD OF REVIEW

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.

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

878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414

F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970).

DISCUSSION

I. APPLICABLE LEGAL REGIME

A. Petitioner’s Challenges Associated With His Removal and

Requests for Stay Are Misdirected

On May 11, 2005, President Bush signed into law the REAL ID

Act of 2005. See Pub. L. 109-13, Div. B, 119 Stat. 231 (May 11,

2005). Section 106(a)(5) of the REAL ID Act of 2005 amends 8

U.S.C. § 1252 to provide that, “[n]otwithstanding any other

provision of law (statutory or non[-]statutory), including section

2241 of title 28, United States Code, or any other habeas corpus

provision . . . . a petition for review filed with an appropriate

court of appeals in accordance with this section shall be the sole

and exclusive means for judicial review of an order of removal

entered or issued under any provision of this Act, except as

provided in subsection (e).” See REAL ID Act of 2005, § 106(a)(5),

to be codified at 8 U.S.C. § 1252(a)(5). 

Moreover, pursuant to 28 U.S.C. § 1631,

[w]henever a civil action is filed in a court . . . and

that court finds that there is a want of jurisdiction,

the court shall, if it is in the interest of justice,

transfer such action or appeal to any other such court in

which the action or appeal could have been brought at the

time it was filed or noticed, and the action or appeal

shall proceed as if it had been filed in or noticed for

the court to which it is transferred on the date upon

which it was actually filed in or noticed for the court

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from which it is transferred.

The applicable venue provision, 8 U.S.C. § 1252(b)(2),

provides that a “petition for review shall be filed with the court

of appeals for the judicial circuit in which the immigration judge

completed the proceedings.” Since it appears that the seat of the

immigration court that issued the order of removal at issue was in

New Jersey, Petitioner’s application challenging his removal (and

the ensuing request for stay) should have been filed with the

United States Court of Appeals for the Third Circuit. 

Therefore, Petitioner’s challenges to his removal (and his

request for stay of removal) will be dismissed for lack of

jurisdiction, pursuant to the REAL ID Act. Moreover, in light of

the fact that the Court of Appeals already addressed Petitioner’s

challenges to his removal and dismissed these challenges, this

Court finds it not in the interests of justice to transfer

Petitioner’s application to the Court of Appeals. However, this

Court stresses that the dismissal for lack of jurisdiction is not

a dismissal on substantive bases, and this Court’s decision to

dismiss the portion of this matter govern by the REAL ID Act does

not prevent Petitioner from filing an application with the Court of

Appeals for the Third Circuit. That leaves the Court with the 4

portion of this matter based on Petitioner’s assertion that he

 This Court expresses no opinion as to the procedural 4

propriety or substantive merit of such application.

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should be released from confinement because Petitioner fears that

the decisions in the Eastern District of New York and Florida cases

are unlikely to be issued during 2010 and might not be even be

issued in the foreseeable future.

However, as the discussion below illustrates, Petitioner’s

fears do not provide this Court with a valid basis for issuance of

a habeas writ.

B. Circumstances Warranting Issuance of a Writ

1. Removal Period and Its Triggering Events

Section 1231(a)(1)(A) provides that the government has a

90-day “removal period” to remove an alien ordered removed from the

United States. Detention during the removal period under Section

1231(a)(1)(A) is mandatory and, in addition, § 1231(a)(1)(C)

provides that the removal period shall 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).

The “removal period” starts on the latest of the following:

(1) the date when the order of removal becomes administratively

final (that is, appeal to BIA was either ruled upon by the BIA or

the time to appeal to the BIA 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

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date the alien is released from confinement. See 8 U.S.C. §

1231(a)(1)(B). 

If – during the period of removal triggered by the then-latest

of the three above-listed events applicable to a particular alien

-- the alien is subjected to a qualifying superceding event, e.g.,

the alien is released from confinement, or if this alien is

detained on a new charge, or the alien files an appeal challenging

his/her order of removal, such superceding event start the alien's

removal period anew. See 8 U.S.C. § 1231(a)(1)(B).

[Indeed, there cannot] be [“]only one[”] removal

period[:] . . . that is the only rational reading of the

statute. . . . [T]he statute provides that the removal

period begins on the latest of several dates. The

passing of one date does not stop the operation of the

statute. In a sense, the only way to apply the statute

to a given situation is retrospectively. That is, the

removal period begins when the removal order becomes

final. If a court issues a stay, the removal period

begins [anew] when the stay is lifted [or when such new

appellate proceeding ends]. Therefore, the only way to

determine when the removal period begins, or began, is to

look at what events already have occurred. If there is

another [potential triggering] event, there is another

potential beginning date for the removal period. The

only sensible reading of this provision is that [DHS] is

required to effectuate the removal within 90 days of

certain events, but [DHS] will have another 90 days if

another one of the [statutorily-]designated events occurs

at a later date. The obvious reason for this is that

[DHS]'s authority to effect the removal is suspended due

to the occurrence of the later event.

Michel v. INS, 119 F. Supp. 2d 485, 498 (M.D. Pa. 2000); accord

Morena v. Gonzales, 2005 U.S. Dist. LEXIS 37989, at *18 (M.D. Pa.

Oct. 4, 2005); Atkinson v. INS, 2002 U.S. Dist. LEXIS 11335, at *5

(E.D. Pa. June 25, 2002); Marcelus v. INS, 2002 U.S. Dist. LEXIS

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795, at *6 (E.D. Pa. Jan. 16, 2002); Dunbar v. Holmes, 2000 U.S.

Dist. LEXIS 17048, at *6-7 (E.D. Pa. Nov. 28, 2000).

2. Zadvydas Period

While, during the 90-day “removal period,” the alien must be

detained, see id. § 1231(a)(2), after the 90-day removal period,

the government may further detain the alien or release him subject

to conditions of release. See id. § 1231(a)(6). In Zadvydas, the

Supreme Court held that aliens may be detained further under §

1231(a)(6), although only for “a period reasonably necessary to

bring about that alien's removal from the United States.” 533 U.S.

at 689 (holding that “the statute, read in light of the

Constitution's demands, limits an alien's post-removal-period

detention to a period reasonably necessary to bring about that

alien's removal from the United States [and] does not permit

indefinite detention”). 

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, coining this “presumptively reasonable period of

detention,” the Supreme Court stressed that,

[a]fter 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 postremoval

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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 (emphasis supplied). 

C. Zadvydas Cannot Be Triggered by Petitioner’s Fears

Here, Petitioner seems to argue that a habeas writ could be

issued directing Petitioner’s release on the basis of his fears

about the timing of decisions by the Eastern District of New York

and Florida courts (or Petitioner’s appeals of those decisions). 

See Docket Entry No. 1, at 5-7. If so, Petitioner errs. In order

to obtain a habeas writ from this Court, Petitioner must show that

– regardless of Petitioner’s cooperation – the government: (a) was

unable to remove Petitioner to Columbia during the period of such

removal efforts lasting longer than six months; and (b) such

removal is unlikely to be executed in the foreseeable future.

This showing cannot be made in Petitioner’s current

circumstances; indeed, Petitioner’s Zadvydas period has just begun,

and Petitioner offers the Court no evidence suggesting that

Petitioner’s removal to Columbia is not forthcoming. Conversely,

Petitioner’s instant submission appears to the suggest the

opposite, i.e., that removal is virtually certain and forthcoming. 

Further, if a court does direct stay of Petitioner’s removal, than

the removal becomes not reasonably likely in the foreseeable

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future, but such order would be irrelevant to Zadvydas analysis:

Petitioner’s Zadvydas period would stop running upon issuance of a

stay order and re-start anew upon expiration of such order (in the

event Petitioner is still subject to removal). Therefore

Petitioner is not able to meet the standard for a writ of habeas

corpus based on Zadvydas.

Hence, while qualifying his instant application as a petition

for a writ of habeas corpus, Petitioner is effectively asking this

Court to: (a) reach outside its jurisdiction limited by the REAL ID

Act, and (b) “overrule” the decisions by both the Board of

Immigration Appeals and the Court of Appeals for the Third Circuit

that had resolved Petitioner’s immigration challenges. That this

Court cannot do. Therefore, the portion of the Petition seeking a

habeas writ on the grounds of alleged possibility that Petitioner’s

challenges to criminal convictions underlying his removal might not

be resolved in the foreseeable future will be dismissed.5

In the event Petitioner’s detention associated with his

 Moreover, even if this Court were to hypothesize that the 5

Court of Appeals issues stay on the grounds of Petitioner’s

matters currently pending before the Eastern District of New York

and Florida courts, the fact of Petitioner’s detention in

anticipation of resolution of these matters would not amount to a

valid basis for a Zadvydas claim. Cf. Pierre v. Weber, 2010 U.S.

Dist. LEXIS 32643, at *15 (D.N.J. Mar. 31, 2010) (a detained

alien “cannot, by definition, be in danger of a de facto life

sentence - so long as the United States judiciary remains

operable, any [legal matter presented for judicial review] would

necessarily become final at a certain foreseeable point in

time”). 

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removal exceeds the period of six months, and – regardless of

Petitioner’s cooperation with the government removal efforts –

Petitioner develops a non-speculative basis for the argument that

his removal is not likely in the foreseeable future, Petitioner may

file a new § 2241 application challenging his detention.

CONCLUSION

For the foregoing reasons, the Petition will be denied. 

An appropriate Order accompanies this Opinion. 

 /s/ Faith S. Hochberg 

 Faith S. Hochberg

 United States District Judge

Dated: August 30, 2010

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