NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SHECHEM LAFAYETTE,

Civil Action No. 11-3389 (CCC)

Petitioner,

v. : OPINION

ROY L. HENDRIX, et al.,

Respondents.

APPEARANCES:

Petitioner pg se Counsel for Respondents

Shechem Lafayette Allan B.K. Urgent

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

Newark, NJ 07105 District of New Jersey

Newark, NJ 07102

CECCHI, District Judge

Petitioner Shechem Lafayette, 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,’

Section 2241 provides in relevant 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 laws or treaties of

the United States.

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The named Respondents include Warden Roy L. Hendrix, U.S. Attorney

General Eric Holder, and various other government officials.

Because it appears from the parties’ submissions 2that

Petitioner is not entitled to relief, the Petition will be

dismissed. See 28 U.S.C. § 2243.

I. BACKGROUND

Petitioner Shechem Lafayette is a native and citizen of

Jamaica who has been detained in connection with removal

proceedings since on or about January 6, 20l0. In this Petition,

dated May 18, 2011, Petitioner challenges his prolonged detention

in connection with his removal proceedings.

On June 7, 2011, an Immigration Judge issued a decision

ordering Petitioner removed to Jamaica. On November 4, 2011, the

Board of Immigration Appeals issued its decision affirming the

Order of Removal. Thus, on November 4, 2011, the Order of Removal

became administratively final.

2 Petitioner has filed two Notions [ECE Docket Entry Nos. 3,

5] to Supplement the Record, that are more properly construed as

supplemental briefs in support of his Petition, To that extent,

this Court will grant the motions and consider the briefs.

In 1988, Petitioner was convicted in the U.S. District

Court for the District of Columbia of various drug and weapons

charges, for which he was sentenced to a term of imprisonment of

410 months, later resentenced to a term of 292 months.

United States v. Lafayette, Criminal No. 88-254-01 (D.D.C.).

Petitioner was taken into custody by immigration officials

immediately upon his release from prison.

2

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On December 5, 2011, the U.S. Court of Appeals for the Third

Circuit docketed Petitioner’s petition for review of the final

order of removal, On January 1, 2012, the Court of Appeals

dismissed the case for failure to pay the filing fee.

II. ANALYSIS

Petitioner challenges his prolonged detention in advance of a

final order of removal. Petitioner asserts that his prolonged

detention is not authorized by law and that it violates his right

under the Fifth Amendment not to be deprived of liberty without due

process. He seeks an order for his immediate release.

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

detain certain deportable aliens, including those who have been

convicted of an aggravated felony or of violating a state law

relating to a controlled substance, during their removal

proceedings (“pre-removal—order detention”) . Although § 1226(c)

does not provide for bail, an alien detained pursuant to § 1226(c)

may move for a hearing to determine if he falls within the

categories of aliens subject to mandatory detention (a “Joseph

hearing”). In re Joseph, 22 I.&N. Dec. 799 (BIA 1999).

In support of his Petition, Petitioner relies, inter alia,

upon Demore v. Kim, 538 U.S. 510 (2004) (relating to

At the Joseph hearing, a detainee may avoid mandatory

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. 8 C.F.R. § 3.19(h) (2) (ii).

3

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constitutionality of pre-removal-order detention) . In Demore v.

m, 538 U.S. 510 (2003), the Supreme Court considered whether

mandatory pre-removal-order detention under § 1226(c) violates due

process. The alien conceded that he fell within the categories of

deportable aliens, who are 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. Demore, 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 — the

issuance of a final decision on removability. at 529-30. 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. at 532-33 (Kennedy, J.,

concurring)

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

Appeals for the Third Circuit has held that there are due process

limitations on the duration of pre—removal-order 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

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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. 2011)

(footnotes omitted)

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

has been entered against Petitioner. 5 Because a final order of

An order of removal becomes administratively 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

(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,

the order shall become final upon an order of removal

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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. 6 As

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

Petitioner’s pre-removal order detention, 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)

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.

6 Because a final order of removal has now been issued

against Petitioner, 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 Dc 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)

6

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To the extent the Petition could be construed as challenging

Petitioner’s post-removal-order detention, he has failed to

demonstrate any entitlement to relief. Zadvydas v, Davis, 533

U.S. 678 (2001) (relating to constitutionality of post—removalorder detention)

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 ninety (90) day “removal period.” Detention beyond

the end of the ninety 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 ninety 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).

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

not effected within ninety days. However, the Supreme Court has

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

temporal reasonableness standard. Specifically, once a

presumptively-reasonable six month period of post—removal—order

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detention has passed, a detained alien must be released if he can

establish that his removal is not reasonably foreseeable.

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 ninety 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.”)

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 removal

period has expired. e.g., Rodney v. Mukasey, 340 Fed. Appx.

761 (3d Cir. 2009); Akinvale v. Ashcroft, 287 F,3d 1050, 1051 (11th

Cir. 2002)

Here, the applicable removal period began to run on November

4, 2011, the date the order of removal became administratively

8

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final. Thus, the six-month presumptively-reasonable removal

period has not yet expired and this claim is not ripe. e.g.,

Ferrer-Chacon v. Department of Homeland Security, No. 06-4452, 2006

ML 3392930 (D.N.J. 2006).

Moreover, Petitioner has alleged g facts to suggest that

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

likelihood of removal in the reasonably foreseeable future.” Here,

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, 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)

Finally, Petitioner has filed a request for emergency stay of

removal. Such a request is properly filed in the Court of Appeals

in connection with a petition for review of a final order of

removal. Under the circumstances presented here, this Court lacks

jurisdiction to enter such an order. Even if this Court could

exercise jurisdiction over the request, Petitioner has failed to

demonstrate any likelihood of success in his challenges to removal,

The request will be denied without prejudice.

Although Petitioner filed a petition for review, the Court

of Appeals dismissed the Petition without granting him a stay of

removal. Accordingly, the date of the Court of Appeals final

order does not trigger the running of the removal period. See 8

U.S.C. § 1231 (a) (1) (B) (ii)

9

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III, CONCLUSION

For the reasons set forth above, the challenge to

Petitioner’s pre-removal-order detention will be dismissed as

moot. The challenge to Petitioner’s post-removal-order detention

will be dismissed without prejudice as premature.

An appropriate order follows.

Claire C. Cecchi

United States District Judge

I t

Dated: I

10

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