NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

WAYNE SAMUELS, :

Civil Action No. 11-1374 (SDW)

Petitioner, :

v. : OPINION

ROY L. HENDRICKS, et al., :

Respondents. :

APPEARANCES:

Petitioner pro se

Wayne Samuels

Essex County Correctional Facility

354 Doremus Ave.

Newark, NJ 07105

WIGENTON, District Judge

Petitioner Wayne Samuels, an alien detainee currently

confined at Essex County Correctional Facility in connection with

removal proceedings, has submitted a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241 and an application 1

for leave to proceed in forma pauperis. The named respondents

 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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are Warden Roy L. Hendricks, Bureau of Immigration and Customs

Enforcement (“ICE”) Newark Field Office Director for Detention

and Removal John Tsoukaris, Acting ICE Assistant Secretary John

T. Morton, Secretary of Homeland Security Janet Napolitano, and

Attorney General Eric Holder.

Based on Petitioner’s affidavit of indigence, this Court

will grant Petitioner leave to proceed in forma pauperis. 

Because it appears from a review of the Petition that Petitioner

is not entitled to relief at this time, the Petition will be

dismissed. See 28 U.S.C. § 2243.

I. BACKGROUND

Petitioner asserts that he is a native and citizen of

Jamaica, who entered this country legally. Following his

convictions for uttering fraudulent documents in violation of

N.J.S.A. 2C:21-2.1.c, and shoplifting in violation of N.J.S.A.

2C:20-11.b(2), Petitioner was taken into custody by the Bureau of

Immigration and Customs Enforcement in connection with removal

proceedings.

Petitioner alleges that he was taken into ICE custody, as a

criminal alien, on October 8, 2009. Thus, Petitioner alleges 2

that he was detained pursuant to 8 U.S.C. § 1226(c). An

Immigration Judge ordered him removed on February 11, 2010. 

 Title 8 Section 1226(c) provides for mandatory detention, 2

prior to the entry of a final order of removal, of certain

criminal aliens.

2

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Petitioner appealed to the Board of Immigration Appeals, which

remanded the matter to the IJ for further proceedings on July 10,

2010.

The Immigration Judge again ordered Petitioner removed, as a

criminal alien, on August 12, 2010. Petitioner again appealed

and, on December 22, 2010, the BIA denied his appeal. Petitioner

has taken no further action to contest his removal. Thus, on

December 2, 2010, the Order of Removal became final. See 8

C.F.R. § 241.1 (2002).

Petitioner has submitted this Petition challenging his

prolonged detention in connection with his removal proceedings. 

He alleges that he has cooperated with efforts to remove him. 

Petitioner seeks an order for his immediate release under

reasonable conditions of supervision.

II. STANDARDS FOR A SUA SPONTE DISMISSAL

United States Code Title 28, Section 2243 provides in

relevant part as follows:

A court, justice or judge 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. Estelle v. Gamble, 429

U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). 

3

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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). Nevertheless, a federal district court can

dismiss a habeas corpus petition if it appears from the face of

the petition that the petitioner is not entitled to relief. See

Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773

F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989). 

See also 28 U.S.C. §§ 2243, 2255.

III. ANALYSIS

At the time he was originally taken into ICE custody,

Petitioner became detained pursuant to the pre-removal order

detention provision, 8 U.S.C. § 1226(c), pertaining to certain

criminal aliens. 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). 

3

 At the Joseph hearing, a detainee may avoid mandatory 3

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

convicted of the predicate crime(s), or that the BICE is

otherwise substantially unlikely to establish that he is in fact

subject to mandatory detention. See 8 C.F.R. § 3.19(h)(2)(ii).

4

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In Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court

considered whether mandatory pre-removal-order detention 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 detention of deportable criminal aliens pending their

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

531. The Court noted that such proceedings typically last only a

few months and, in contrast to the potentially indefinite postremoval period detention rejected in Zadvydas v. Davis, 533 U.S.

678 (2001), pre-removal-order detention has a finite termination

point. 538 U.S. at 529-530.4

Petitioner ceased to be detained under § 1226(c) on December

22, 2010, approximately fourteen months after his detention

began, when the BIA denied his appeal. Accordingly, he cannot 5

now challenge, in habeas, his custody under § 1226(c), which

ended prior to the submission of this Petition, dated February

16, 2011. See, e.g., Rodney v. Mukasey, 340 Fed.Appx. 761 (3d

Cir. 2009). Any habeas challenge to the legality of his

 In his concurrence, Justice Kennedy took the position that 4

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

detention might violate due process. 538 U.S. at 532-33

(Kennedy, J., concurring).

 The Court notes that, during that fourteen-month period, 5

Petitioner twice appealed the IJ’s orders of removal. Thus, the

pre-removal-order detention period appears to have been

reasonable.

5

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detention under § 1226(c) became moot before Petitioner filed

this Petition.

Petitioner is now detained pursuant to 8 U.S.C. § 1231(a),

which governs the detention and removal of an alien subject to a

final order of removal. 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).

An order of removal made by the immigration judge at

the conclusion of proceedings under section 240 of the

Act shall become final:

(a) Upon dismissal of an appeal by the Board of

Immigration Appeals;

(b) Upon waiver of appeal by the respondent;

(c) Upon expiration of the time allotted for an appeal

if the respondent does not file an appeal within that

time;6

(d) If certified to the Board or Attorney General,

upon the date of the subsequent decision ordering

removal;

 The referenced appeal period is thirty days. See 8 C.F.R. 6

§ 1003.28(b).

6

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(e) If an immigration judge issues an alternate order

of removal in connection with a grant of voluntary

departure, upon overstay of the voluntary departure

period, or upon the failure to post a required

voluntary departure bond within 5 business days. If

the respondent has filed a timely appeal with the

Board, the order shall become final upon an order of

removal by the Board or the Attorney General, or upon

overstay of the voluntary departure period granted or

reinstated by the Board or the Attorney General.

8 C.F.R. § 1241.1.

Section 1231(a)(6) permits continued detention if removal is

not effected within 90 days. However, the Supreme Court has held

that such post-removal-order detention is subject to a temporal

reasonableness standard. Specifically, once a presumptivelyreasonable six-month period of post-removal-order detention has

passed, a resident alien must be released if he can establish

that his removal is not reasonably foreseeable. See Zadvydas v.

Davis, 533 U.S. 678 (2001); Clark v. Martinez, 543 U.S. 371

(2005).

The alien bears the initial burden of establishing that

there is "good reason to believe that there is no significant

likelihood of removal in the reasonably foreseeable future,"

after which the government must come forward with evidence to

rebut that showing. Zadvydas, 533 U.S. at 699-701. But see 8

U.S.C. § 1231(a)(1)(C) (“The removal period shall be extended

beyond a period of 90 days and the alien may remain in detention

during such extended period if the alien fails or refuses to make

timely application in good faith for travel or other documents

7

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necessary to the alien's departure or conspires or acts to

prevent the alien's removal subject to an order of removal.”).7

Finally, and most importantly for purposes of this decision,

to state a claim under Zadvydas, the six-month presumptivelyreasonable removal period must have expired at the time the

Petition is filed; a prematurely filed petition must be dismissed

without prejudice to the filing of a new Petition once the sixmonth presumptively-reasonable removal period has expired. See,

e.g., Akinvale v. Ashcroft, 287 F.3d 1050, 1051 (11th cir. 2002);

Fahim v. Ashcroft, 227 F.Supp.2d 1359, 1363 (N.D. ga. 2002);

Monpremier v. Chertoff, 2007 WL 909575 (N.D. Fla. March 21,

2007).

Here, Petitioner’s order of removal became final on December

22, 2010. His habeas petition is dated February 16, 2011, less

than six months after his order of removal became final. 

Accordingly, the Petition must be dismissed without prejudice as

premature.

To the extent the Petition could be construed as asserting

that the pre- and post-removal-order confinement times should be

aggregated under a combination Demore/Zadvydas theory of a

 Petitioner makes no effort even to suggest that his 7

removal is not reasonably foreseeable. Instead, he appears to

base his claim of entitlement to release solely upon the passage

of time. As the Petition must be dismissed for other reasons,

this Court need not evaluate whether Petitioner has made the

necessary showing under Zadvydas.

8

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reasonable period of detention, there is no support in the

statutes or the caselaw for such a proposition. To the contrary,

the statutory scheme specifically contemplates consecutive

periods of detention under the two statutes, Sections 1226 and

1231, and neither Demore nor Zadvydas suggests that the

constitutionality of either detention period should be evaluated

by aggregating the pre- and post-final-order detention periods. 

IV. CONCLUSION

For the reasons set forth above, the Petition will be

dismissed wihtout prejudice as premature. An appropriate order

follows.

s/Susan D. Wigenton 

Susan D. Wigenton

United States District Judge

Dated: March 15, 2011

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