NOT FOR PUBLICATION CLOSED

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

 :

RAYNALD ESTIME, :

 : Civil Action No.

Petitioner, : 11-1928 (JLL)

 :

v. : O P I N I O N 

 :

ERIC HOLDER, JR., et al., :

 :

Respondents. :

_______________________________:

 

Linares, District Judge:

On April 5, 2011, Petitioner Raynald Estime (“Petitioner”), a

native of Haiti, who entered the United States on October 29, 1999,

filed the instant Petition for a Writ of Habeas Corpus

(“Petition”), pursuant to 28 U.S.C. § 2241, challenging his

detention by the Department of Homeland Security (“DHS”) at the 1

Essex County Correctional Center. 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.

Page -1-

Case 2:11-cv-01928-JLL Document 2 Filed 04/18/11 Page 1 of 9 PageID: 52
BACKGROUND

According to the Petition, on December 15, 2009, Petitioner --

a Haitian citizen having permanent residency in the United States

-- was convicted in the New Jersey Superior Court, Law Division,

Essex County, on three charges constituting removable offenses. 

See Docket Entry No. 1, at 5. Petitioner was ordered removed on 2

November 17, 2010. The accepts as true Petitioner’s assertion that

he waived his right to appeal that determination. See id. 

Citing nothing but the January 12, 2010 earthquake which

devastated Haiti, Petitioner now asserts that: (a) there is no

significant likelihood of his removal to Haiti in the reasonably

foreseeable future; and, therefore, (b) Petitioner must be deemed

illegally confined. See Docket Entries Nos. 1 and 1-1. 

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

2

The Petition does not specify the charges upon which

Petitioner was convicted in New Jersey state court. See generally,

Docket Entry No. 1. However, one of many exhibits Petitioner

attached to his Petition indicates that Petitioner was convicted on

charges of “possession of controlled dangerous substance,

aggravated assault on a law enforcement officer and firearm

violations.” See Docket Entry No. 1-2, at 7.

Page -2-

Case 2:11-cv-01928-JLL Document 2 Filed 04/18/11 Page 2 of 9 PageID: 53
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 is 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.

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 LAW

A. 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)

Page -3-

Case 2:11-cv-01928-JLL Document 2 Filed 04/18/11 Page 3 of 9 PageID: 54
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 the right to appeal was

waived); 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 the alien is released from

confinement. See 8 U.S.C. § 1231(a)(1)(B). 

B. 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). However, in

Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court held that

aliens may be detained further under § 1231(a)(6) 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

Page -4-

Case 2:11-cv-01928-JLL Document 2 Filed 04/18/11 Page 4 of 9 PageID: 55
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

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). 

II. PETITIONER’S CONFINEMENT IS PROPER 

Here, Petitioner’s Zadvydas six-month period was triggered on

November 17, 2010, that is, the date when Petitioner allegedly

waived his right to appeal his order of removal. Therefore,

Petitioner's current Zadvydas-based presumptively reasonable period

of detention will expire six months from November 17, 2010, i.e.,

on May 17, 2011. See Zadvydas v. Davis, 533 U.S. at 701. 

Consequently, Petitioner current detention is fully lawful, and his

Page -5-

Case 2:11-cv-01928-JLL Document 2 Filed 04/18/11 Page 5 of 9 PageID: 56
claim based on the length of his detention are facially without

merit and should be dismissed.

Moreover, here, Petitioner asserts that there is no

significant likelihood of his removal to Haiti in the reasonably

foreseeable future simply because of the earthquake suffered by

Haiti in January 2010. Petitioner’s argument is based on pure

speculation at this juncture. See Zadvydas v. Davis, 533 U.S. at

701 (“the alien [must] provide[] good reason to believe that there

is no significant likelihood of removal in the reasonably

foreseeable future”). Nevertheless, if Petitioner is not removed

to Haiti by May 17, 2011, Petitioner may file another § 2241

petition and may shift the burden to the government (that is,

obligate the government to show the feasibility of Petitioner's

removal) provided that such petition is based on more than the bald

conclusions contained in the instant petition. For instance,

Petitioner will have to demonstrate that “the circumstances of his

status” or the existence of “particular barriers to his

repatriation” to his country of origin are such that there is no

significant likelihood of removal in the reasonably foreseeable

future. See, e.g., Fahim v. Ashcroft, 227 F. Supp. 2d 1359, 1366

(N.D. Ga. 2002).

Furthermore, while -– as a result of the earthquake –- the

Secretary of the DHS, Janet Napolitano, granted temporary protected

status (“TPS”) to all Haitians living in the United States for a

Page -6-

Case 2:11-cv-01928-JLL Document 2 Filed 04/18/11 Page 6 of 9 PageID: 57
period of eighteen months (effective from January 21, 2010, through

July 22, 2011), the notice of humanitarian declaration issued by

Secretary Napolitano expressly excluded Haitians convicted of

certain crimes from TPS eligibility. Specifically, persons

convicted of any felony (or two or more misdemeanors) committed in

the United States have been ordered ineligible for TPS. See Fed.

Reg. No. 2010-1169 (filed 01/20/2010, posted at

<<http://edocket.access.gpo.gov/2010/2010-1169.htm>>). Since

Petitioner’s exhibits indicate three felony convictions, accord

<<https://www6.state.nj.us/DOC_Inmate/details?x=1436546&n

=0>> (New Jersey Department of Corrections record, indicating

Petitioner’s convictions on the bases of three different offenses,

committed on two different occasions, with each offense found

punishable by 18-month period of imprisonment), Petitioner’s status

is unaffected by the TPS provision. Thus, to the extent

Petitioner’s claims are based upon the TSP notice, such claims are

also without merit and accordingly dismissed. 

CONCLUSION

For the foregoing reasons, the Petition will be denied.

Petitioner may renew his Zadvydas-based challenges after May 17,

2011, in accordance with the guidance provided to him herein. 

Petitioner will be directed to pay his filing fee or duly apply for

in forma pauperis status in connection with the instant

Page -7-

Case 2:11-cv-01928-JLL Document 2 Filed 04/18/11 Page 7 of 9 PageID: 58
application. In the event Petitioner elects to file another 3

Section 2241 petition, he shall submit a separate filing fee (or

seek in forma pauperis status anew) in connection with that future

 “[A] pro se prisoner's habeas petition is deemed filed at 3

the moment [(s)]he delivers it to prison officials for mailing to

the district court.” Burns v. Morton, 134 F.3d 109, 113 (3d Cir.

1998) (citing Houston v. Lack, 487 U.S. 266 (1988)). However,

the issue of the limitations period aside,

[a]n application is “filed,” as that term is commonly

understood, when it is delivered to, and accepted by the

appropriate court officer for placement into the official

record. [Moreover, an] application is “properly filed” when

its delivery and acceptance are in compliance with the

applicable laws and rules governing filings. These usually

prescribe . . . the form of the document, . . . the court

and office in which it must be lodged, and the requisite

filing fee.

Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (citations and footnote

omitted). 

Section 1914 provides that “[t]he [C]lerk of each district

court shall require the parties instituting any civil action,

suit or proceeding in such court . . . to pay a filing fee of $

350 except that on application for a writ of habeas corpus the

filing fee shall be $ 5.” 42 U.S.C. § 1914(a). A related

statute, Section 1915, governs applications filed in forma

pauperis (“IFP”) and provides, in relevant part, that leave to

proceed IFP may be granted in any suit to a litigant “who submits

an affidavit [which demonstrates] that the [litigant] is unable

to pay such fees or give security therefor.” 28 U.S.C. §

1915(a)(1). Specifically, in a habeas matter, the prisoner

seeking to proceed IFP must submit to the Clerk: (a) a completed

affidavit of poverty; and (b) a certification signed by an

authorized officer of the institution certifying both the amount

presently on deposit in the petitioner's prison account as well

as the greatest amount on deposit in the petitioner’s prison

account during the six month period prior to the date of the

certification. See Local Civil Rule 81.2(b). The prisoner’s

legal obligation to prepay the filing fee or to duly obtain IFP

status is automatically incurred by the very act of initiation of

his/her legal action. See Hairston v. Gronolsky, 2009 U.S. App.

LEXIS 22770, at *5 (3d Cir. Oct. 15, 2009) (citing Hall v. Stone,

170 F.3d 706, 707 (7th Cir. 1999)). 

Page -8-

Case 2:11-cv-01928-JLL Document 2 Filed 04/18/11 Page 8 of 9 PageID: 59
application. 

An appropriate Order accompanies this Opinion. 

/s/ Jose L. Linares 

JOSE L. LINARES

 United States District Judge

Dated: April 18, 2011 

Page -9-

Case 2:11-cv-01928-JLL Document 2 Filed 04/18/11 Page 9 of 9 PageID: 60