NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________________________________

:

DINO RAMBHAROSE, :

: Civil Action No. 11-2941 (WJM)

Petitioner, :

:

v. : O P I N I O N

:

ERIC H. HOLDER, et al., :

:

Respondents. :

________________________________:

APPEARANCES:

Dino Rambharose, Pro Se Hans Harris Chen

Essex County Correctional Facility U.S. Dept. of Justice

J200102949 P.O. Box 868

354 Doremus Avenue Ben Franklin Station

Newark, NJ 07105 Washington, DC 20044

Attorney for Respondents

MARTINI, District Judge

On May 20, 2011, Dino Rambharose, a native of Trinidad and

Tobago, filed this petition for a writ of habeas corpus, pursuant

to 28 U.S.C. § 2241, challenging his continued detention. After

carefully considering the submissions of the parties, and based

upon the following, this Court finds that the petition must be

denied.

BACKGROUND

Petitioner is a lawful permanent resident of the United

States. In 1997, he was convicted in New York state of attempted

criminal possession of cocaine. Based on that 1997 conviction,

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in May of 2010, an Immigration Judge (“IJ”) ordered the Bureau of

Immigration and Customs Enforcement (“ICE”) to remove Petitioner

to Trinidad and Tobago. On October 5, 2010, the Board of

Immigration Appeals (“BIA”) dismissed Petitioner’s appeal of the

removal order, rendering Petitioner’s removal order final. 

The record reveals that on November 29, 2010, ICE agents

attempted to execute the removal order by escorting Petitioner to

a plane bound for Trinidad. After boarding, Petitioner refused

to take his seat. A shoving match ensued, and the airline

captain ordered that Petitioner be taken off the plane prior to

take off due to his disruptive behavior. Almost three months

later, on February 15, 2011, ICE again attempted to remove

Petitioner. This time, Petitioner violently resisted the ICE

officers’ attempts to remove him from the detention facility, and

at the airport, the airline refused to allow Petitioner to board

because it could not provide empty seats around him to ensure the

safety of others, should Petitioner become disruptive on the

plane. (Exhibits E, F, G to Answer).

On May 20, 2011, Petitioner filed this petition. He argues

that his continued detention, without a bond hearing, is unlawful

under Zadvydas v. Davis, 533 U.S. 678 (2001) and violates his

substantive and procedural due process rights. On August 18,

2011, Respondents filed an answer and the record of the case. 

Respondents point out that Petitioner is no longer in ICE custody

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because, due to Petitioner’s behavior, the government filed

criminal charges against him for failing to cooperate with his

removal, in violation of 8 U.S.C. § 1253(a)(I)(C). See United

States v. Rambharose, 11-cr-455 (SRC). Therefore, since the July

6, 2011 order of commitment in that case, the Marshals’ Service

has been detaining Petitioner, not ICE. Respondents ask that

this Court find the petition moot. Further, Respondents argue

that Petitioner should not be released under Zadvydas because his

continued detention is due to his own actions in resisting

removal.

DISCUSSION

A. Standard of Review

Title 28 of the United States Code, section § 2241 provides

in pertinent part:

(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 the laws or treaties of the

United States.

The Supreme Court has held that habeas corpus proceedings

are available to aliens who challenge post-removal-period

detention. See Zadvydas v. Davis, 533 U.S. 678, 688 (2001). The

Immigration and Nationality Act § 241(a)(2) provides that the

government has a ninety-day “removal period” to remove an alien

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ordered removed from the United States. The removal period

begins on the latest of the following: (1) the date the order of

removal becomes administratively final; 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 detention or confinement. 

See 8 U.S.C. § 1231(a)(1)(B).

In Zadvydas, the Supreme Court held that aliens may be held

under § 241(a)(6) for a presumptively valid period of six months. 

See Zadvydas, 533 U.S. at 701. Also, the Supreme Court

articulated the following standard for federal courts considering

petitions for habeas corpus under § 241 of the INA:

[T]he habeas court must ask whether the detention in

question exceeds a period reasonably necessary to

secure removal. It should measure reasonableness

primarily in terms of the statute's basic purpose,

namely, assuring the alien's presence at the moment of

removal. Thus, if removal is not reasonably

foreseeable, the court should hold continued detention

unreasonable and no longer authorized by statute.

Zadvydas, 533 U.S. at 699-700. Under Zadvydas, to effectuate

release from confinement after the presumptively valid period of

six months, a petitioner has the burden to show “good reason to

believe that there is no significant likelihood of removal in the

reasonably foreseeable future.” Id. at 701. Once the alien

shows good reason to believe there is no significant likelihood

of removal in the reasonably foreseeable future, the Government

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must “respond with evidence sufficient to rebut that showing.” 

Id. If removal is not reasonably foreseeable, the court should

deem the petitioner's detention unlawful and release the alien

subject to conditions and supervision. See id. at 700.

B. Petitioner’s Request is Moot.

As noted by Respondents, Petitioner is not being held in ICE

custody. Therefore, his request that this Court direct ICE to

release him is moot. Federal courts are not empowered to decide

moot issues. See U.S. CONST. art. III, § 2, cl. 1.; Doe v. Delie,

257 F.3d 309, 313 (3d Cir. 2001)(citing North Carolina v. Rice,

404 U.S. 244, 246 (1971)). To avoid mootness, a controversy must

exist at all stages of review. See id. (citing New Jersey

Turnpike Auth. V. Jersey Central Power & Light, 772 F.2d 25, 31

(3d Cir. 1985)). "Mootness has two aspects: (1) the issues

presented are no longer ‘live’ or (2) the parties lack a

cognizable interest in the outcome." Id. (quoting New Jersey

Turnpike Auth., 772 F.2d at 31). In the instant case, because

the issues are no longer “live” and because a controversy no

longer exists, see Spencer v. Kemna, 523 U.S. 1, 7 (1998), the

issues raised in the instant petition are moot.

C. Petitioner Has Not Cooperated.

Alternatively, Petitioner’s request must be denied on its

merits. In this case, Petitioner's final order of removal was

entered on October 5, 2010, and Petitioner has been detained

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longer than the presumptive valid period of six months set forth

by the Supreme Court. See Zadvydas, 533 U.S. at 701. Since the

presumptively valid period of detention has expired, Petitioner

may be released upon a showing that there is no significant

likelihood of removal in the reasonably foreseeable future.

Respondents argue Petitioner's detention is lawful under 8

U.S.C. § 1231, as he remains in detention because of his own

failure to cooperate with the removal procedures. Respondents

contend that although they attempted to remove him less than two

months after his removal order became final, Petitioner has

“violently and repeatedly resisted removal from the United

States, [and] the Court should not reward him by granting him

freedom in the United States.” (Answer, p. 8).

Aliens awaiting deportation pursuant to 8 U.S.C. § 1231 may

remain detained for an extended period of time if the alien

“conspires or acts to prevent the alien's removal subject to an

order of removal.” 8 U.S.C. § 1231(a)(1)(C). This Court finds

that Petitioner has failed to cooperate with his removal, and has

not met his burden of showing that there is no significant

likelihood of removal in the reasonably foreseeable future. In

fact, the record shows that Petitioner has been brought to the

airport twice in attempts to remove him. An alien cannot

convincingly argue that there is no significant likelihood of

removal in the reasonably foreseeable future “if the detainee

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controls the clock.” Joseph v. Chertoff, 2006 WL 1722593 (citing

Pelich v. INS, 329 F.3d at 1060). Here, Petitioner is

controlling the clock. It is because of Petitioner’s actions

that he was not removed. See also Pierre v. Weber, 2010 WL

1373710, at *4 (D.N.J. Mar. 31, 2010) (holding that “it would be

anomalous to suggest that an alien’s frustration of the

government’s efforts to remove him would reward the alien with

release from custody if the alien is persistent enough to keep

his thwarting activities for a period exceeding Zadvydas’ six

months”).

This Court recognizes that Petitioner is currently being

held for the criminal case. However, it is clear that his

eventual removal from the United States is likely. As such, the

petition for a writ of habeas corpus must be denied.1

 This Court notes that Petitioner filed an application to 1

supplement the petition (docket entry 11). In that application,

which was considered by this Court, Petitioner cites to Diop v.

ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011) for the

proposition that he is entitled to a bond hearing. However,

here, Petitioner is being held by the Marshals, not ICE. 

Nevertheless, since Petitioner is subject to a final order of

removal, Diop would not apply.

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CONCLUSION

For the reasons stated, Petitioner's petition for a writ of

habeas corpus is denied. An appropriate Order accompanies this

Opinion.

 s/William J. Martini

 

 WILLIAM J. MARTINI

United States District Judge

Dated: 2/6/12

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