NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

HERBERT SAINT AUBYN POWELL, :

: Civil Action No. 11-3209 (SDW)

Petitioner, :

:

v. : OPINION

:

ERIC H. HOLDER, JR., et al., :

:

Respondents. :

APPEARANCES:

Petitioner pro se Counsel for Respondents

Herbert Saint Aubyn Powell Peter G. O’Malley

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

Newark, NJ 07105 Newark, NJ 07102

WIGENTON, District Judge

Petitioner Herbert Saint Aubyn Powell, an alien detained in

connection with removal proceedings and currently confined at

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 are Warden Roy 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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Attorney General Eric H. Holder, Jr., and Director Kimberly

Zanotti.

I. BACKGROUND

Petitioner is a native and citizen of Jamaica, admitted to

the United States on an immigrant visa when he was a child. He

has an extensive criminal record in the United States, dating

back to 1996, including convictions for robbery, theft by

deception, bank fraud and conspiracy to commit bank fraud.

On September 24, 2008, while Petitioner was confined

pursuant to his criminal conviction, he was served with a Notice

to Appear in immigration proceedings, advising him that he was

being charged as removable based on hi conviction for bank fraud. 

Petitioner was taken into immigration custody on February 8,

2010, upon release from his term of imprisonment on the federal

bank fraud charges. A second NTA was served on or about February

18, 2010, referencing the same charges as well as additional

charges.

On May 11, 2011, an Immigration Judge ordered Petitioner

removed. Petitioner appealed to the Board of Immigration

Appeals. On August 26, 2011, the Board of Immigration Appeals

dismissed Petitioner’s appeal, making it administratively final. 

Petitioner then filed a petition for review with the U.S. Court

of Appeals for the Third Circuit. See Powell v. Attorney

General, No. 11-3765 (3d Cir.). By Orders entered November 9,

2

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2011, and January 19, 2012, the Court of Appeals denied

Petitioner’s motions for stay of removal. More specifically, in

its November 2011 Order, the Court of Appeals stated that

Petitioner had not shown a likelihood of success on the merits or

that a balancing of the preliminary-injunction factors of Douglas

v. Ashcroft, 374 F.3d 230 (3d Cir. 2004), merited a stay of

removal pending disposition of the petition for review. The

petition for review remains pending, otherwise.

On May 31, 2011, before the Order of removal became

administratively final, Petitioner filed this Petition for writ

of habeas corpus, challenging the constitutionality of his

prolonged detention in connection with his removal proceedings.

In support of this Petition, Petitioner relies upon Demore

v. Kim, 538 U.S. 510 (2004) (relating to constitutionality of

pre-removal-order detention), and Zadvydas v. Davis, 533 U.S. 678

(2001) (relating to constitutionality of post-removal-order

detention).

II. ANALYSIS

Under 8 U.S.C. § 1226(c), the Attorney General is required

to detain certain criminal during their removal proceedings

(“pre-removal-order detention”). There is no dispute that

Petitioner was subject to mandatory pre-removal order detention

under this provision based upon his felony convictions.

3

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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). 

2

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 mandatory 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 that pre-removal-order detention has a

finite termination point - issuance of a final decision on

removability. 538 U.S. at 529-530. In his concurrence, however,

Justice Kennedy took the position that circumstances could arise

in which long-term pre-removal-order detention might violate due

process. 538 U.S. at 532-33 (Kennedy, J., concurring).

Taking note of Justice Kennedy’s guidance, the Court of

Appeals for the Third Circuit recently has held that there are

 At the Joseph hearing, a detainee may avoid mandatory 2

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

convicted of the predicate crime, 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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due process limitations on the duration of pre-removal-order

mandatory detention.

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

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.

Sept. 1, 2011) (footnotes omitted).

Turning to the question of when 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

5

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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

reasonableness enquiry 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.

During the pendency of this matter, however, a final order

of removal has been entered against Petitioner. Because a final 3

 An order of removal becomes administratively final: 3

(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;

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

the date of the subsequent decision ordering removal;

(e) If an immigration judge orders an alien removed in

the alien's absence, immediately upon entry of such

order; or

(f) 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,

6

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order of removal has been entered, Petitioner is no longer

detained pursuant to § 1226(c), which governs only detention

prior to the entry of a final order of removal. Instead,

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

governs the detention of an alien subject to a final order of

removal (“post-removal-order detention”).

Because Petitioner is no longer detained pursuant to

§ 1226(c), as he was at the time he filed this Petition, the

challenge to his pre-removal-order detention has become moot.4

As there is no longer a live “case or controversy” regarding

Petitioner’s pre-removal order detention, see U.S. Constitution,

Article III, the challenge to Petitioner’s pre-removal-order

detention will be dismissed. See Rodney v. Mukasey, 340

Fed.Appx. 761 (3d Cir. 2009).

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 U.S.C. § 1241.1.

 Because a final order of removal has now been issued 4

against Petitoner, it is not likely that he will be detained ever

again under the pre-removal-order detention provision. Thus,

this is not the type of case subject to the mootness exception

for cases that are “capable of repetition” while “evading

review.” See De La Teja v. United States, 321 F.3d 1357, 1361-63

(11th Cir. 2003). This exception applies only when “(1) the

challenged action [is] in its duration too short to be fully

litigated prior to its cessation or expiration, and (2) there

[is] a reasonable expectation that the same complaining party

[will] be subjected to the same action again.” Weinstein v.

Bradford, 423 U.S. 147, 149 (1975) (per curiam).

7

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To the extent the Petition could be construed as asserting a

challenge to Petitioner’s post-removal order detention, based

upon his reliance on the Zadvydas case, such challenge is

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

§ 1231(a). Section 1231(a)(2) requires the detention of such

aliens during a 90-day “removal period.” Detention beyond the

end of the 90-day removal period is governed by the

constitutional principles set forth by the Supreme Court in

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

Section 1231(a)(1) requires the Attorney General to attempt

to effectuate removal within the 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). 

5

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

 Because the Court of Appeals has denied Petitioner’s 5

motions for stay of removal, the removal period began to run on

the date the order of removal became administratively final, that

is, on August 26, 2011.

8

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reasonableness standard. Specifically, once a presumptivelyreasonable six-month 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 Zadvydas v.

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

(2005).

Thus, 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 necessary to the alien's departure or conspires

or acts to prevent the alien's removal subject to an order of

removal.”)

Here, Petitioner’s post-removal order detention had not

begun to run at the time he filed the Petition, nor has 6

 To state a claim under Zadvydas, the six-month 6

presumptively-reasonable 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 removal period has expired. See, e.g., Rodney v. Mukasey,

340 Fed.Appx. 761 (3d Cir. 2009); Akinvale v. Ashcroft, 287 F.3d

1050, 1051 (11th cir. 2002). Thus, this claim was not ripe when

9

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Petitioner alleged any facts that would suggest that his removal

is not likely to occur in the reasonably foreseeable future. 

Petitioner has not suggested any individual barriers to his

repatriation, see Zadvydas, 533 U.S. at 684-85 (alien petitioner

Zadvydas was a “stateless” individual), nor has he suggested any

institutional barrier to his removal, see Zadvydas, 533 U.S. at

686 (alien petitioner Kim Ho Ma was from Cambodia, a country with

which the United States has no repatriation agreement).

Accordingly, any claim challenging the constitutionality of

Petitioner’s post-removal order detention will be dismissed

without prejudice as premature.

III. CONCLUSION

For the reasons set forth above, the Petition will be

dismissed. An appropriate order follows.

s/Susan D. Wigenton 

Susan D. Wigenton

United States District Judge

Dated: March 5, 2012 

the Petition was filed. See, e.g., Ferrer-chacon v. Department

of Homeland Security, 2006 WL 3392930 (D.N.J. 2006).

10

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