NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 :

AKINTOYE LAOYE, : CIVIL ACTION NO. 11-3242 (MLC)

 :

Petitioner, : O P I N I O N

 :

v. :

 :

WARDEN, HUDSON COUNTY :

CORRECTIONAL CENTER, :

 :

Respondent. :

 :

COOPER, District Judge

This matter comes before the Court upon Petitioner’s filing of 

a habeas application, pursuant to 28 U.S.C. § 2241 (ECF Nos. 1,2). 

Respondent has answered (ECF No. 29). Petitioner’s Emergency Motion 

for Bail (ECF No. 24) remains pending. For the reasons expressed 

below, the Petition will be denied and the Motion will be denied.

BACKGROUND

The following facts are taken from the record provided by 

Respondent with the response to the Petition (ECF No. 29). 

Petitioner, a native and citizen of Nigeria, is an alien 

detainee seeking release from confinement. He was ordered removed 

on February 28, 2008 by an Immigration Judge, and an appeal of the 

decision was denied by the Board of Immigration Appeals (“BIA”) on 

December 17, 2008. The Court of Appeals for the Third Circuit 
2

(“Court of Appeals”) denied his petition for review of the BIA’s 

decision on November 16, 2009. See Laoye v. Att’y Gen., 352 

Fed.Appx. 714 (3d Cir. 2009).

Petitioner was detained by Immigration and Customs Enforcement 

(“ICE”) on March 22, 2011. On May 31, 2011 when ICE attempted to 

remove him, Petitioner refused to board his flight to Nigeria. 

Again, on June 13, 2011, Petitioner refused to board a flight to 

Nigeria. As a result, he was issued a “Notice of Failure to Comply,” 

for repeatedly refusing to cooperate with efforts to remove him.

On July 6, 2011, the Court of Appeals granted Petitioner’s stay 

of removal pending review of a denial of a motion by the BIA. On 

October 11, 2011, Petitioner received a custody status review.

On January 27, 2012, the Court of Appeals granted Petitioner’s 

petition for review and remanded to the BIA. On June 25, 2012, the

BIA denied Petitioner’s motions and subjected him to a final order 

of removal. A custody status review was conducted on September 27, 

2012. The BIA’s denial of his motions prompted Petitioner to again 

appeal to the Court of Appeals, but this time his petition and request 

for a stay were denied as of November 9, 2012.

In the meantime, Petitioner filed this Petition on June 6, 2011, 

and a supplemental petition on June 9, 2011, arguing that his 

continued detention violates his substantive due process rights. On 
3

October 17, 2012, he filed the Emergency Motion for Bail pending 

habeas, which remains pending.

DISCUSSION

A. Jurisdiction and Standard of Review

Under 28 U.S.C. § 2241(c), habeas jurisdiction “shall not extend 

to a prisoner unless ... [h]e 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 jurisdiction under 

§ 2241(c)(3) if two requirements are satisfied: (1) the petitioner 

is “in custody,” and (2) the custody is “in violation of the 

Constitution or laws or treaties of the United States.” 28 U.S.C. 

§ 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). This Court 

has subject matter jurisdiction over the Petition under § 2241 

because Petitioner was detained within its jurisdiction in the 

custody of the ICE at the time he filed the Petition, see Spencer 

v. Kemna, 523 U.S. 1, 7 (1998), and he asserts that his detention 

is not statutorily authorized and violates federal law. See

Bonhometre v. Gonzales, 414 F.3d 442, 445–46 (3d Cir. 2005).

“Habeas corpus petitions must meet heightened pleading 

requirements.” McFarland v. Scott, 512 U.S. 849, 856 (1994). A 

petition must “specify all the grounds for relief” and set forth 

“facts supporting each of the grounds thus specified.” 28 U.S.C. § 
4

2254 Rule 2(c) (amended Dec. 1, 2004, applicable to § 2241 petitions 

through Habeas Rule 1(b)).

B. Legality of Detention

The Immigration and Nationality Act authorizes the Attorney 

General of the United States to issue a warrant for the arrest and 

detention of an alien pending a decision on whether the alien is to 

be removed from the United States. See 8 U.S.C. § 1226(a) (“On a 

warrant issued by the Attorney General, an alien may be arrested and 

detained pending a decision on whether the alien is to be removed 

from the United States.”); see also Demore v. Kim, 538 U.S. 510, 531

(2003) (“Detention during removal proceedings is a constitutionally 

permissible part of that process”). Once an alien’s order of removal 

is final, the Attorney General is required to remove the alien from 

the United States within a 90–day “removal period.” See 8 U.S.C. 

§ 1231(a)(1)(A) (“Except as otherwise provided in this section, when 

an alien is ordered removed, the Attorney General shall remove the 

alien from the United States within a period of 90 days (in this 

section referred to as the ‘removal period’).”).

This 90–day removal period begins on the latest of the 

following:

(i) The date the order of removal becomes 

administratively final.
5

(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)(2) requires aliens to be detained during this 

90–day removal period. See 8 U.S.C. § 1231(a)(2) (“During the 

removal period, the Attorney General shall detain the alien”).

However, if the alien is not removed during this 90–day removal 

period, then the alien may either be released on bond or remain in 

detention. Section 1231(a)(6) provides:

An alien ordered removed who is inadmissible under section 

1182 of this title, removable under section 1227(a)(1)(C), 

1227(a)(2), or 1227(a)(4) of this title or who has been 

determined by the Attorney General to be a risk to the 

community or unlikely to comply with the order of removal, 

may be detained beyond the removal period and, if released, 

shall be subject to the terms of supervision in paragraph (3).

8 U.S.C. § 1231(a)(6).

Section 1231(a)(6) does not authorize the Attorney General to 

detain aliens indefinitely beyond the removal period, but “limits 

an alien’s post-removal-period detention to a period reasonably 

necessary to bring about that alien’s removal from the United 

States.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001). Six months 

is a presumptively reasonable period of post-removal-period 
6

detention under § 1231(a)(6). See id. at 701. But to state a claim 

under § 2241 sufficient to require the Government to respond, the 

alien must provide in a petition facts showing good reason to believe 

that there is no significant likelihood of the alien’s actual removal 

in the reasonably foreseeable future:

After this 6–month period, once 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.

Zadvydas, 533 U.S. at 701.

Thus, an alien must provide in the § 2241 petition good reason 

to believe removal is not foreseeable before the Government will be 

required to respond. See id.; see also Barenboy v. Att’y Gen., 160 

Fed.Appx. 258, 261 n.2 (3d Cir. 2005) (“Once the six-month period 

has passed, the burden is on the alien to provide good reason to 

believe that there is no significant likelihood of removal in the 

reasonably foreseeable future. Only then does the burden shift to 

the Government, which must respond with evidence sufficient to rebut 

that showing.”) (citation, internal quotation marks, and alterations

omitted).
7

This Court finds here that the Petition must be denied. 

Petitioner is within the six-month Zadvydas window for the Government 

to secure his removal. Petitioner’s ICE detention began on March 22, 

2011, when he was taken into custody on the previous order of removal. 

This removal period was interrupted by the stay issued by the Court 

of Appeals on July 6, 2011 and subsequent remand to the BIA. See

8 U.S.C. § 1231(a)(1)(B)(ii); Hitchens v. Elwood, No. 11-7233, 2012 

WL 3019936, at *3 (D.N.J. July 24, 2012). The BIA ruled on his case 

on June 25, 2012, subjecting him to a second final order of removal 

and post-removal-order detention. Accordingly, the six-month 

presumptively reasonable period of post-removal-order detention 

under Zadvydas had not expired at the time this Petition was filed.

Alternatively, Petitioner cannot show that his removal is not 

reasonably foreseeable. In fact, the Government had the appropriate 

travel documents on two occasions; on the two occasions of his 

scheduled removal, Petitioner refused to board his scheduled 

flights. Under 8 U.S.C. § 1231(a) and Zadvydas, Petitioner has not 

provided good reason to believe that there is no significant 

likelihood of his removal in the reasonably foreseeable future.

The Court also notes that Petitioner has received custody 

reviews on October 11, 2011 (denied release because ICE had not had 

an unencumbered 90-day period to remove Petitioner due to 
8

Petitioner’s failure to cooperate and stay of removal), and September 

27, 2012 (denied release because Petitioner posed a danger to the 

community and was a flight risk).

Therefore, this Court finds that Petitioner’s detention is 

neither illegal nor unconstitutional, and the Petition must be 

denied.

CONCLUSION

The Court will deny the Petition and deny the outstanding 

Motion. The Court will issue an appropriate order and judgment.

 s/ Mary L. Cooper .

MARY L. COOPER

United States District Judge

Dated: June 10, 2013