NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MIKHAIL BULATOV, :

: Civil Action No. 11-845 (FSH)

Petitioner, :

:

v. : OPINION

:

ROY L. HENDRICKS, et al., :

:

Respondents. :

APPEARANCES:

Petitioner, pro se Counsel for Respondents

Mikhail Bulatov Leah Amber Bynon

Essex County Corr. Fac. Assistant U.S. Attorney

Newark, NJ 07105 970 Broad Street

Suite 700

Newark, NJ 07102

HOCHBERG, District Judge

Petitioner, Mikhail Bulatov, an alien detained in connection

with removal proceedings and currently confined at the Essex

County Correctional Facility in Newark, New Jersey, has submitted

a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241. The Respondents include Warden Roy L. Hendricks, 1

 Section 2241 provides in relevant part: 1

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective

jurisdictions.

(c) The writ of habeas corpus shall not extend to a

prisoner unless-- ... (3) He is in custody in violation

of the Constitution or laws or treaties of the United

States ... .

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Secretary of the Department of Homeland Security Janet

Napolitano, U.S. Attorney General Eric Holder, and immigration

officials John Tsoukaris and John T. Morton.

Because it appears from a review of the parties’ submissions

that Petitioner is not entitled to relief, the Petition will be

denied. 

I. BACKGROUND

Petitioner is a citizen of Russia who entered the United

States in 2003 on a valid H4 Visa with authorization to stay in

the United States for a period not to exceed three months. 

On or about March 20, 2009, Petitioner submitted a Form 485

Adjustment of Status application in order to change his

immigration status. On that form, Petitioner falsely stated that

he had never been arrested or imprisoned in the Republic of

Kazakhstan prior to his arrival in the United States. 

2

Petitioner was placed in removal proceedings, for

overstaying his visa, by issuance of a Notice to Appear on April

13, 2009.

On October 14, 2009, Petitioner pleaded guilty in this Court

to one count of making a false statement on his Adjustment of

 As Petitioner has admitted, he was arrested and 2

incarcerated in the Republic of Kazakhstan, prior to his entry

into the United States, on charges related to the deaths of four

persons in 1998. Those charges remain pending and there

currently exists an Interpol Red Notice and Request from the

Republic of Kazakhstan seeking Petitioner’s arrest and

extradition.

2

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status form, in violation of 18 U.S.C. § 1001, and was sentenced

to a five-month term of imprisonment. See United States v.

Bulatov, Criminal No. 09-0767 (D.N.J.). Upon his release on 3

March 29, 2010, Petitioner was taken into custody by immigration

officials and was detained at the Essex County Correctional

Facility, where he remains. The Notice to Appear charged that

Petitioner was removable for overstaying his visa, in violation

of Section 237(a)(1)(B) of the Immigration and Nationality Act.

At the time Petitioner was taken into immigration custody,

the Supervisory Deportation Officer conducted a custody

determination in which he determined that Mr. Bulatov should

remain detained until removed. Petitioner was advised that he

could request review of that determination, which he initially

declined. Later, having made a request for a change in custody,

pursuant to 8 C.F.R. § 236.1(c), Petitioner appeared for a bond

hearing before an Immigration Judge on April 8, 2010. The

Immigration Judge denied Petitioner’s request for a change in

custody. Petitioner did not appeal this decision.

Petitioner appeared for a master calendar hearing on April

8, 2010, at which he conceded removability. Petitioner requested

 This Court will take judicial notice of the dockets of 3

this and other federal courts in cases related to this Petition. 

See Fed.R.Evid. 201; Southern Cross Overseas Agencies, Inc. v.

Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426-27 (3d Cir.

1999) (federal court, on a motion to dismiss, may take judicial

notice of another court’s opinion, not for the truth of the facts

recited therein, but for the existence of the opinion, which is

not subject to reasonable dispute over its authenticity).

3

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adjournments to retain new counsel and to prepare applications

for relief from removability. Petitioner filed an application

for asylum and withholding of removal and other relief on July

15, 2010. On September 29, 2010, Petitioner appeared for a fullday merits hearing on his application. The Immigration Judge

scheduled the hearing to continue on October 20, 2010. On

December 2, 2010, the Immigration Judge issued her opinion and

order denying Petitioner’s various applications for relief and

ordering Petitioner removed to Russia. Petitioner timely

appealed to the Board of Immigration Appeals (“BIA”).

The BIA originally ordered the submission of briefs by

February 15, 2011. Petitioner’s counsel requested an extension

of time, bringing the deadline to March 8, 2011. On February 8,

2011, before the briefing deadline, Petitioner’s counsel filed a

motion to correct the proceedings transcript, which the BIA

granted. The Immigration Court sent the corrected transcript to

the BIA on March 30, 2011. The BIA then ordered the submission

of briefs by April 28, 2011. Petitioner’s counsel again

requested an extension, bringing the deadline to May 19, 2011. 

On July 6, 2011, the BIA issued a decision affirming the

Immigration Judge’s decision ordering that Petitioner be removed. 

Petitioner timely moved for the BIA to re-open his administrative

appeal. See 8 U.S.C. § 1229a(c)(7). The BIA denied the motion

4

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by decision dated November 23, 2011, at which time the order of

removal became administratively final.

Meanwhile, on July 29, 2011, the United States Court of

Appeals for the Third Circuit docketed Petitioner’s application

for review of the July 6, 2011 BIA decision. See Bulatov v.

Attorney General of the United States, No. 11-3048 (3d Cir.). On

October 6, 2011, the Court of Appeals granted Petitioner’s motion

for stay of removal. The Court of Appeals has not yet entered

its decision on the merits. Petitioner also has appealed the

November 23, 2011, BIA decision denying his application to reopen. See Bulatov v. Attorney General of the United States, No.

11-4357 (3d Cir.). The appeals have been consolidated.

On August 22, 2011, the government served Petitioner with a

Notice to Alien of File Custody Review, which he refused to sign

because he disputed the nature of his detention, whether it

should be considered pre-removal-order or post-removal-order

detention, and the standards by which the propriety of his

detention should be determined. (Letter Reply, Docket Entry No.

16.) On October 24, 2011, Petitioner was served with a Decision

to Continue Detention, in which he was advised that his file had

been reviewed, including his false statements and criminal

record, that he had not submitted any documentation or evidence

to support his release, and that therefore he was to remain in

immigration custody until his removal. The Decision also stated

5

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that Petitioner’s custody status would again be reviewed 90 days

after the stay of removal was lifted or one year from the date of

that Decision. (Letter, Docket Entry No. 18.)

On June 15, 2012, Petitioner filed a motion in the

Immigration Court for custody redetermination. On June 19, 2012,

the Immigration Judge denied the motion for lack of jurisdiction,

on the ground that Petitioner was subject to an administratively

final order of removal. See 8 C.F.R. § 1236.1(d)(1). Petitioner

appealed and, on August 31, 2012, the BIA affirmed on the grounds

cited by the Immigration Judge. (Letter Motion, Docket Entry No.

21.)

On February 8, 2011, during the pendency of the

administrative appeal of the Immigration Judge’s order of

removal, Petitioner submitted this Petition, challenging the

constitutionality of his prolonged detention. Petitioner

contends that Section 1226(a) must be read to permit

discretionary detention only for the period reasonably necessary

to secure removal and that, therefore, prolonged pre-removalorder detention in the absence of an adequate hearing violates

his right to due process. Petitioner contends that he has now

exhausted his administrative remedies, that his detention has

become unreasonably prolonged, and that he should be considered a

pre-release-order detainee entitled to a bond hearing. In

support of his Petition, Petitioner relies upon Demore v. Kim,

6

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538 U.S. 510 (2004) (relating to constitutionality of preremoval-order detention), Diop v. Holder, 656 F.3d 1221 (3d Cir.

2011) (same), and Zadvydas v. Davis, 533 U.S. 678 (2001)

(relating to constitutionality of post-removal-order detention).4

In their Answer, Respondents assert that this Court lacks

jurisdiction to review the discretionary decision to deny a bond

and that Petitioner’s detention is not unconstitutionally

prolonged. During the pendency of this matter, Petitioner has

filed several Letter replies advising the Court of developments

in his removal proceedings and recent caselaw, appending copies

of the relevant documents, to which Respondents have not

responded. Briefing is complete and this matter is now ready for

decision.

II. ANALYSIS

A. Detention of Aliens in Removal Proceedings

Federal law sets forth the authority of the Attorney General

to detain aliens in removal proceedings. Title 8 U.S.C.

§ 1226(a) permits the Attorney General to arrest and detain

certain aliens, “pending a decision on whether the alien is to be

removed from the United States,” and permits the Attorney General

to continue to detain an arrested alien or to release the alien

on bond or conditional parole. Under Title 8 U.S.C. § 1226(c),

 To the extent the Petition could be construed as 4

challenging the order of removal, jurisdiction to review the

order of removal lies with the Court of Appeals, before which

Petitioner’s appeal is pending. See 8 U.S.C. § 1252.

7

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however, the Attorney General is required to detain certain

criminal aliens during the pendency of their removal proceedings. 

Although § 1226(c) does not provide for bail, an alien detained

pursuant to § 1226(c) may move for a Joseph hearing to determine

if he falls within the categories of aliens subject to mandatory

detention. In re Joseph, 22 I. & N. Dec. 799 (BIA 1999). These 5

generally are referred to as “pre-removal-order” detention

provisions.

“Post-removal-order” detention is governed by 8 U.S.C.

§ 1231(a). Section 1231(a)(1) requires the Attorney General to

attempt to effectuate removal within a 90-day “removal period.”

The removal period begins on the latest of the

following:

(i) The date the order of removal becomes

administratively final.

(ii) If the removal order is judicially reviewed and if

a 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.

8 U.S.C. § 1231(a)(1)(B). Section 1231(a)(6) permits continued

detention if removal is not effected within 90 days.

The Supreme Court first addressed the constitutionality of

any of these detention provisions in Zadvydas v. Davis, 533 U.S.

 At the Joseph hearing, a detainee may avoid mandatory 5

detention by demonstrating that he is not an alien, was not

convicted of the predicate crime, or that the Bureau of

Immigration and Customs Enforcement is otherwise substantially

unlikely to establish that he is in fact subject to mandatory

detention.

8

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678 (2001), in which the Court held that extended post-removalorder detention under § 1231(a)(6) is subject to a temporal

reasonableness standard. That is, the government may not detain

indefinitely an alien ordered removed, but may detain such an

alien only for a period reasonably necessary to secure his

removal. More specifically, once a presumptively-reasonable sixmonth period of post-removal-order detention has passed, a

detained alien must be released if he can establish that his

removal is not reasonably foreseeable. See also Clark v.

Martinez, 543 U.S. 371 (2005) (Zadvydas holding applies to aliens

deemed inadmissible to the United States).

In Demore v. Kim, 538 U.S. 510 (2003), upon which Petitioner

relies, the Supreme Court considered whether mandatory preremoval-order detention of criminal aliens under § 1226(c)

violates due process. In the case of an alien who conceded that

he fell within the categories of deportable aliens subject to

mandatory detention under § 1226(c), the Supreme Court found that

mandatory detention of deportable criminal aliens pending their

removal proceedings did not violate due process. 538 U.S. at

531. As an initial matter, the Court found that “[s]uch

detention necessarily serves the purpose of preventing deportable

criminal aliens from fleeing prior to or during their removal

proceedings, thus increasing the chance that, if ordered removed,

the aliens will be successfully removed.” In addition, the Court

9

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noted that such proceedings typically last only a few months and

that pre-removal-order detention has a finite termination point -

issuance of a final decision on removability - rather than the

“indefinite” and “potentially permanent” detention previously

found, in Zadvydas, to be unconstitutional when imposed upon

aliens subject to a final removal order but for whom removal was

not reasonably foreseeable. 538 U.S. at 528-530 (distinguishing

post-removal-order detention examined in Zadvydas). In his

concurrence, however, Justice Kennedy took the position that

circumstances could arise in which long-term pre-removal-order

mandatory detention might violate due process. 538 U.S. at 532-

33 (Kennedy, J., concurring).

These cases form the foundation for Petitioner’s challenge

to his detention.

B. Petitioner’s Detention

Petitioner was taken into custody pursuant to 8 U.S.C.

§ 1226(a), which permits the Attorney General to exercise his

discretion in determining whether to detain an alien during

removal proceedings or to release such an alien on bond or

parole. 

Petitioner was granted a prompt administrative custody

determination, followed by a bond hearing before an Immigration

Judge, at which a decision was made to deny release. Petitioner

declined to appeal that decision to the BIA. See 8 C.F.R.

10

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§§ 236.1, 287.7. Thereafter, Petitioner’s custody was again

administratively reviewed in a proceeding in which the government

treated Petitioner as a post-removal-order detainee. Most

recently, Petitioner moved for a bond redetermination which was

denied for lack of jurisdiction on the ground that Petitioner was

then subject to an administratively final order of removal.

The question whether Petitioner is detained under the

discretionary pre-removal-order statute, 8 U.S.C. § 1226(a), or

the post-removal-order statute, 8 U.S.C. § 1231, was recently

decided in accord with Petitioner’s position in Leslie v.

Attorney General of the U.S., 678 F.3d 265 (3d Cir. 2012). The

Court of Appeals there decided that an alien held subject to and

within a stay of removal cannot yet be in the “removal period” of

§ 1231 but is, instead, confined pursuant to the pre-removalorder detention of § 1226. Id. at 270. 

Here, the Court of Appeals issued a stay of removal on

October 6, 2011, before the administrative proceedings were

concluded on November 23, 2011. Accordingly, Petitioner has been

held in discretionary pre-removal-order detention, under

§ 1226(a), since he was taken into immigration custody on March

29, 2010. See Contant v. Holder, 352 Fed. Appx. 692 (3d Cir.

2009); Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008).

Nevertheless, pursuant to 8 U.S.C. § 1226(e), “The Attorney

General’s discretionary judgment regarding the application of

11

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this section shall not be subject to review. No court may set

aside any action or decision by the Attorney General under this

section regarding the detention or release of any alien or the

grant, revocation, or denial of bond or parole.” This Court

agrees that it lacks jurisdiction to review the discretionary

custody decisions; in any event, Petitioner does not challenge

those discretionary decisions. He alleges a constitutional

violation, detention in violation of his due process rights. 

Courts generally agree that § 1226(e) does not divest them of

jurisdiction to hear challenges to prolonged pre-removal-order

detention under the Attorney General’s discretionary authority,

where such challenges raise constitutional claims or questions of

law. See, e.g., Singh v. Holder, 638 F.3d 1196, 1200-02 (9th

Cir. 2011) (collecting cases and holding that § 1226(e) does not

limit federal court’s jurisdiction to review bond hearing

determinations for constitutional claims or legal error) (citing

Demore v. Kim, 538 U.S. 520, 516-17 (2003)).

Taking guidance from Justice Kennedy’s concurrence in Demore

v. Kim, the Third Circuit has held that there are due process

limitations on the duration of mandatory pre-removal-order

detention under § 1226(c).

Under the Supreme Court’s holding [in Demore], Congress

did not violate the Constitution when it authorized

mandatory detention without a bond hearing for certain

criminal aliens under § 1226(c). This means that the

Executive Branch must detain an alien at the beginning

of removal proceedings, without a bond hearing -- and

12

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may do so consistent with the Due Process Clause -- so

long as the alien is given some sort of hearing when

initially detained at which he may challenge the basis

of his detention. [This is the Joseph hearing.] 

However, the constitutionality of this practice is a

function of the length of the detention. At a certain

point, continued detention becomes unreasonable and the

Executive Branch’s implementation of § 1226(c) becomes

unconstitutional unless the Government has justified

its actions at a hearing inquiring into whether

continued detention is consistent with the law’s

purposes of preventing flight and dangers to the

community. This will necessarily be a fact-dependent

inquiry that will vary depending on individual

circumstances. We decline to establish a universal

point at which detention will always be considered

unreasonable.

...

In short, when detention becomes unreasonable, the

Due Process Clause demands a hearing, at which the

Government bears the burden of proving that continued

detention is necessary to fulfill the purposes of the

detention statute.

Diop v. ICE/Homeland Security, 656 F.3d 221, 232-33 (3d Cir.

2011) (emphasis in original) (footnotes omitted).

Turning to the question of when mandatory pre-removal-order

detention becomes “unreasonable,” the Court of Appeals noted that

the petitioner in Demore had been detained only six months, only

slightly longer than the average length of pre-removal-order

detention in contested cases, when his petition was decided. The

Court of Appeals agreed with the government that the

reasonableness determination must take into account a given

individual detainee’s need for more or less time, as well as the

exigencies of a particular case, but also held that the

13

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reasonableness inquiry must take into account errors in the

proceedings that cause unnecessary delay. In Diop, the Court of

Appeals concluded that the petitioner’s 35-month detention

period, extended by the immigration judge’s numerous errors and

the government’s failure to secure, at the earliest possible

time, evidence that bore directly on the issue of whether Diop

was properly detained, was unreasonably long.

The Court of Appeals for the Third Circuit also has had the

opportunity to consider the constitutionality of prolonged

detention under § 1226(a), the discretionary pre-removal-order

detention provision directly at issue here. In Contant v.

Holder, 352 Fed. Appx. 692 (3d Cir. 2009), the Court of Appeals

distinguished both Zadvydas and Demore, Zadvydas because postremoval-order detention was potentially indefinite and Demore

because it involved mandatory detention. Consistent with

Zadvydas, however, the Court of Appeals construed the

discretionary pre-removal-order detention provision, § 1226(a),

as limiting the Attorney General’s detention authority to the

period “reasonably necessary” to effectuate the alien’s removal. 

In reaching its decision, the Third Circuit relied on PrietoRomero v. Clark, 534 F.3d 1053 (9th Cir. 2008), in which the

Court of Appeals for the Ninth Circuit held that the 3-year

detention of an alien in removal proceedings, though prolonged,

was not indefinite or unconstitutional. The Ninth Circuit found

14

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that removal in the reasonably foreseeable future was likely, as

a petition for review of the administrative order of removal was

then pending before it, and there was no indication that the

petitioner could not be repatriated to his country of origin if

ordered removed. Thus, the petitioner was “not stuck in a

‘removable but unremovable limbo.’” Prieto-Romero, 534 F.3d at

1063 (citation omitted). Though the end date of the petitioner’s

removal proceedings was uncertain, the Ninth Circuit was

persuaded, because an Immigration Judge and the BIA had found the

petitioner removable and strict procedural rules would govern

judicial review of that decision, that the end date was

reasonably foreseeable.

Similarly, in Contant, the Third Circuit held that the alien

petitioner’s 19-month pre-removal-order detention was not

“indefinite” and, therefore, unconstitutional, as a decision on

his removability appeared reasonably foreseeable and there was no

indication that he could not be removed to his country of origin

at the conclusion of his removal proceedings. The Court further

noted that the petitioner had been afforded a bond hearing and

that much of the delay in proceedings was due to the alien’s own

request for a continuance.

Here, Petitioner has failed to establish that his detention

is indefinite or that his removal is not reasonably foreseeable. 

As of this writing, briefing before the Court of Appeals in

15

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Petitioner’s consolidated appeals is nearly complete. Thus,

although the end date of his removal proceedings is uncertain, it

surely is reasonably foreseeable. Petitioner has not suggested

that he cannot be removed if he is unsuccessful in challenging

his removal. Thus, Petitioner’s detention, though prolonged, is

not indefinite.

In addition, much of the delay in Petitioner’s proceedings

is attributable to him. Petitioner requested and received an

adjournment before the Immigration Judge of approximately three

months, after conceding removability, to prepare an application

for relief from removal. Before the BIA, Petitioner’s counsel

requested two short extensions of time, which together amounted

to approximately six weeks. Before the Court of Appeals,

Petitioner has requested extensions of time or for leave to file

noncompliant briefs several times, accounting for delays of

approximately six months. See Bulatov v. Attorney General, No.

11-3048 (3d Cir.). Together, these requests for extensions of

time account for approximately one-third of Petitioner’s 30-month

detention. 

Finally, Petitioner received an initial bond hearing before

an Immigration Judge which he declined to appeal, and he has

received a subsequent administrative review. He is scheduled for

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another administrative custody review soon. He has received the 6

process he is due.

Accordingly, for all the foregoing reasons, Petitioner has

failed to establish that his detention is unlawful.

III. CONCLUSION

For the reasons set forth above, the Petition for writ of

habeas corpus will be denied. An appropriate order follows.

s/ Faith S. Hochberg 

Faith S. Hochberg

United States District Judge

Dated: October 4, 2012 

 As the Third Circuit’s Leslie decision has resolved the 6

question regarding the statutory authority for Petitioner’s

detention, 8 U.S.C. § 1226(a), this Court anticipates that future

custody reviews will be conducted pursuant to the standards

applicable to that provision.

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