Petitioner,

Civil No. 11-0006 (PGS)

V.

ROY L. HENDRICKS. etc.. et al.. OPIN1ON

Respondents.

APPEARANCES:

PANKAJ AKI3ARI, A 040 364 623

Essex County Jail354 I)oremus Avenue

Newark, New Jersey 071 05Petitioner Pro Se

SHERIDAN, District Judg

Pankaj Akbari, a native and citizen of India, filed a Petition for a Writ of 1-laheas Corpus

under 28 U.S.C. § 2241 challenging his post-removal period detention in the custody of

Immigration and Customs Enforcement (“ICE”) of the Department of Flomeland Security

(“DHS”). Petitioner challenges his delention as not statutorily authorized and in violation of due

process guaranteed by the Fifth Amendment, and he seeks an order directing respondents to

release him from custody, Because Petitioner has not alleged facts showing that his removal is

not reasonably foreseeable, his detention is statutorily authorized b 8 U.S.C. § 1231 (a)(6) and

his detention does not violate due process. This Court will summarily dismiss the Petition.

v ithout prejudice to the tiling of a ne petition in a new civil action in the event that Petitioners

removal is not reasonably foreseeable.
imprisonment. He alleges that on October 10, 2007, an immigration judge issued an order of

removal based on his criminal conviction, DHS allegedly took him into custody on June 7, 2010,

when he was released from incarceration. “Petitioner did not appeal thereby making the removalorder final as of the date of the Immigration Judge’s decision,” (Docket Entry #1, p. 4.)

Petitioner further asserts on October 26, 2010, DHS reviewed his custody status, and on

October 28, 2010, DHS denied release on supervision because he posed a threat to the public due

to his criminal history. However, Petitioner insists that he poses no danger to the community andno flight risk. He alleges that DHS denied his written requests for release on September 23,

2010, and October 5, 2010, on the ground that DHS “was waiting for travel documents from the

consulate of India.” (Docket Entry #1, p. 5.) Petitioner asserts that he “has done everything inhis power to cooperate with ICE to help in his removal. Petitioner went to his consulate in NewYork City on or about July 14 to see about obtaining his travel documents. Petitioner has

supplied biographical information to ICE to help in his removal proceedings. Petitioner hasfilled out paperwork to obtain emergency travel documents. Petitioner has done everything that

was asked of him by ICE.” () lie argues that his continued detention is not statutorily

authorized and violates procedural and substantive due process. Petitioner seeks a Writ ofHabeas Corpus directing respondents to release him under supervision or to conduct a hearing

where respondents demonstrate that Petitioner’s continued detention is justified. ( at p. 12.)
S C 2241 (c )(3) \ tedcral Lou’ t has subJLct rnattLl jui isdiction undcr 2241 (c )( 3)i! tv o

requirements are satisfied: (1) the petitioner is “in custody,” and (2) the custody is “in violation

ofthe Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); Maleng v.

Cook. 490 U.S. 488. 490 (1989); 1 James S. Liebman & Randy Hertz, Federal I labeas Corpus

Practice and Procedure § 8.1 (4th ed. 2001). This Court has subject matter jurisdiction over the

Petition under § 2241 because Petitioner was detained within its jurisdiction in the custody of the

i)HS at the time he tiled his Petition, Spencer v. Kemna, 523 U.S. 1. 7 (1998). and he asserts

that his detention is not statutorily authorized and violates his constitutional rights. See

Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d Cir.2005).

B. Standard of Review

1-labeas Rule 4 requires a district court to examine a habeas petition prior to ordering an

answer and to dismiss the petition if the petitioner is not entitled to relief. gg 28 U.S.C. § 2254Rule 4, applicable through Rule 1(b). Habeas Rule 4 provides in relevant part:

The clerk must promptly lorward the petition to a judge. . . and the

judge must promptly examine it. If it plainly appears from the

petition and any attached exhibits that the petitioner is not entitled

to relief in the district court, the judge must dismiss the petitionand direct the clerk to notify the petitioner.

28 U.S.C. § 2254 Rule 4. applicable through Rule 1(b).
relief.” lyai, 773 F.2d 37. 45 (3d Cir. 1985). cert, denied, 490 U.S. 1025 (1989>: see

also McFarland v. Scott. 512 U.S. 849. 856 (1994); United States v. Thomas. 221 F.3d 430, 437

(3d (‘ir. 2000) (habeas petition may be dismissed where none of the grounds alleged in the

petition would entitle [the petitionerj to relief’).

C. Legality of Detention

The Immigration and Nationality Act (“INA”) authorizes the Attorney General of the

United States to issue a warrant for the arrest and detention of an alien pending a decision on

whether the alien is to be removed from the United States. See 8 U.S.C. S 1226(a) (On a

arrant issued by the Attorney General, an alien may he arrested and detained pending a decision

on whether the alien is to he removed from the United States ...“). “Detention during removal

proceedings is a constitutionally perniissible part of that process.” Demore v. Kim, 538 U.S.

510, 531 (2003).

Once an alien is ordered removed, the Attorney General is required to remove him or her

ITom the United States within a 90-day rcmoval period: See 8 U.S.C. § 1231 (a)( I )(A)

(“Except as otherwise provided in this section. when an alien is ordered removed, the Attorney

General shall remoxe the alien from the United States within a period of 90 days (in this section

referred to as the ‘removal period’).”) 8 U.S.C. § 123 l(a)(l)(A). This 90-day removal period

begins

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(iii) If the alien is detained or confined (except under animmigration process), the date the alien is released from detention

or confinement.

8 U.S.C. § l231(a)(l)(B).

Section § 1231 (a)(2) requires the Attorney General to detain aliens during this 90-day

removal period. 8 U.S.C. § 123 1(a)(2) (“During the removal period, the Attorney Generalshall detain the alien”).

However, if the DHS does not remove the alien during this 90-day removal period, then §

1231 (a)(6) authorizes the Attorney General to thereafter continue to detain the alien.

Specifically, § 123 l(a)(6) provides:

An alien ordered removed who is inadmissible under section 1182

of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or

1227(a)(4) of this title or 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 periodand, if released, shall be subject to the terms of supervision inparagraph (3).

8 U.S.C. § 123 l(a)(6).

In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court held that § 123 1(a)(6)

does not authorize the Attorney General to detain aliens indefinitely beyond the removal period,

hut “limits an alien’s post-removal-period detention to a period reasonably necessary to bring

about that alien’s removal from the United States.” Zadvydas, 533 U.S. at 689. However, “once
likelihood of removal in the reasonably foreseeable future, the Government must respond with

evidence sufficient to rebut that showing.”

In this ease, Petitioner’s 90-day removal period began on June 7, 2010, when he was

released from his criminal sentence. See 8 U.S.C. 123 l(a)(1)(B)(iii). The six-month

presumptively reasonable period of detention under 123 1(a)(6), as interpreted by Zadvydas,

began to run on June 7. 2010, at the earliest, when he was taken into custody of DHS, and

continued through 1)ecernber 7, 2010. Petitioner executed the 2241 Petition on December 26.

2010, 19 days after the six-month presumptively reasonable period of detention expired.Petitioner’s detention continues lobe authorized by 8 U.S.C. 1231(a)(6), however, because no

facts alleged in the Petition “provide[1 good reason to believe that there is no significant

likelihood of removal [to India] in the reasonably foreseeable future,” which would require the

government to “respond with evidence sufficient to rebut that showing.” Zadvydas, 533 U.S. at

701.2

In 2005. the Supreme Court ruled in (‘lark v. Martinez, 543 U.S. 371 (2005). that the

post-remo’al—period detention ol two inadmissible aliens from Cuba who had not effected

Lntl \ s no longer St itutol authoi 1/Ld b\ 12 ‘ I (a)( 6> because i cmos alto C uba as not

reasonably foreseeable. Se Clark v. Martinez. 543 U .S. at 384.

Fo state a claim of unauthorized detention under Zadvvdas. a petitioner must provide

“good reason to believe that there is no likelihood of removal in the reasonably threseeable

future.” Zadvvdas. 533 [.5. at 701. See Joseph v. United Slates. 127 Fed, ;\pp’x 79. 81 (3d (‘ir.

(continued...)

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filing of a new § 2241 petition (in a new civil action) in the event that Petitioner can show that

there is good reason to believe that there is no significant likelihood of Petitioner’s removal in

the reasonably foreseeable future. See Akinwale, 287 F. 3d at 1052 (‘Because circumstancesmay ultimately change in [petitioner’si situation, we affirm the dismissal [of his habeas petitionJ

without prejudice to [hisj ability to file a new § 2241 petition in the future”).

2( .continued)

2005) (affirming dismissal of 2241 petition challenging detention pursuant to § 123 l(a)(6):

“Under Zadvydas, a petitioner must provide ‘good reason’ to believe there is no likelihood ofremoval, 533 U.S. at 701, and Alva has failed to make that showing here”); Soberanes v.

comfort, 388 F. 3d 1305 (10th Cir. 2004) (affirming dismissal of 2241 petition challenging

detention pursuant to § 123 l(a)(6) where petitioner failed to provide good reason to believe that

there is no likelihood of removal); Akinwale v. Ashcroft, 287 F. 3d 1050, 1052 (11th Cir. 2002)(“in order to state a claim under 7ayysthe alien not only must show post-removal order

detention in excess of six months but also must provide evidence of a good reason to believe that

there is no significant likelihood of removal in the reasonably foreseeable future”); Pierre v.

Weber, 2010 WL 1492604 (D.N.J. April 14, 2010) (summarily dismissing § 2241 petition as

premature under Zadvydas and § 123 1(a)(6) where petitioner filed petition during presumptivelyreasonable six-month period after removal became final and failed to assert facts showing hisremoval is not reasonably foreseeable).

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L1/

PETER C. SHERII)AN

United States District Judge

A f i)ATLI): 3 2011

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