NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________________________________

:

MOHAMMED HAIDER ALI, :

: Civil Action No. 11-2072 (FSH)

Petitioner, :

:

v. : O P I N I O N

:

WARDEN OSCAR AVILES, et al., :

:

Respondents. :

________________________________:

APPEARANCES:

Mohammed Haider Ali, Pro Se Colette R. Buchanan

Hudson County Jail Asst. U.S. Attorney

30-35 South Hackensack Ave. 970 Broad Street

Kearny, NJ 07032 Suite 700

Newark, NJ 07102

Attorney for Respondents 

HOCHBERG, District Judge

Petitioner Mohammed Haider Ali, an immigration detainee

currently confined at the Hudson County Jail, Kearny, New Jersey,

submitted a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241. After Order of this Court, Petitioner filed an 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 ... .

Case 2:11-cv-02072-FSH Document 27 Filed 07/09/12 Page 1 of 10 PageID: 274
Amended Petition on January 23, 2012, naming the warden of the

Hudson County Jail as a respondent (docket entry 22). 

Respondents have filed numerous letters to this Court, to provide

information as to Petitioner’s pending immigration case. The

Court has reviewed all submissions. For the following reasons,

the Petition will be dismissed. 

BACKGROUND

The following facts are taken from the Petition, Amended

Petition, and various motions and the case record entered on the

docket of this matter.

Petitioner is a native and citizen of Bangladesh, who

arrived in the United States in December of 1991 with a

counterfeit visa. He was paroled into the United States because

he expressed fear of returning to Bangladesh. Petitioner applied

for asylum, but failed to appear for his immigration

appointments. 

In March of 2010, the Immigration and Customs Enforcement

(“ICE”) began removal proceedings against Petitioner. He was

informed that he was removable as an alien who, by fraud or

willful misrepresentation, sought to procure a visa for

admission, under Section 212(a)(6)(c)(i) of the Immigration and

Nationality Act (“INA”). He was also subject to removal as an

immigrant who did not possess a valid entry document, under

212(a)(7)(A)(i)(I) of the INA. He was taken into ICE custody on

2

Case 2:11-cv-02072-FSH Document 27 Filed 07/09/12 Page 2 of 10 PageID: 275
March 25, 2010 and held pending his appearance before an

Immigration Judge (“IJ”).

On April 2, 2010, and on occasions thereafter, Petitioner

appeared before the IJ. His requests for parole were denied. 

Due to delays in his case, Petitioner’s applications for asylum,

withholding of removal, and protection under the Convention

Against Torture were not filed until January 3, 2011. A hearing

was held on various dates through August 25, 2011.

On April 12, 2011, during the pendency of his IJ matter,

Petitioner filed this petition for a writ of habeas corpus,

pursuant to 28 U.S.C. § 2241. He originally appeared with

counsel, but was deemed to be proceeding pro se by Order of this

Court dated September 9, 2011 (docket entry 17). Petitioner’s

Amended Petition asserts that he should be released from custody

during the pendency of his immigration proceedings (Amended

Petition, docket entry 22).

Respondents filed a letter on May 21, 2012, attaching the

Board of Immigration Appeals (“BIA”) decision dismissing

Petitioner’s appeal of his IJ decision. Respondents point out

that the removal order is now administratively final. As such,

Petitioner’s detention is governed by 8 U.S.C. § 1231, requiring

detention of an alien subject to a final order of removal.

3

Case 2:11-cv-02072-FSH Document 27 Filed 07/09/12 Page 3 of 10 PageID: 276
DISCUSSION

A. Legal Standard

1. Jurisdiction

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 ICE at the

time he filed his Petition, see Spencer v. Kemna, 523 U.S. 1, 7

(1998), and construing the petition liberally, he asserts that

his mandatory detention is not statutorily authorized by 8 U.S.C.

§ 1226(c) and violates his due process rights. See Zadvydas v.

Davis, 533 U.S. 678, 699 (2001); Bonhometre v. Gonzales, 414 F.3d

442, 445–46 (3d Cir. 2005).

2. Mootness

The exercise of judicial power depends upon the existence of

a case or controversy because Article III of the Constitution

limits the judicial power of federal courts to “cases or

4

Case 2:11-cv-02072-FSH Document 27 Filed 07/09/12 Page 4 of 10 PageID: 277
controversies” between parties. U.S. Const. Art. III, § 2. This

“case-or-controversy requirement subsists through all stages of

federal judicial proceedings, trial and appellate.... The parties

must continue to have ‘a personal stake in the outcome’ of the

lawsuit.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477–78

(1990). “This means that, throughout the litigation, the

plaintiff must have suffered, or be threatened with, an actual

injury traceable to the defendant and likely to be redressed by a

favorable judicial decision.” Spencer, 523 U.S. at 7 (citation

and internal quotation marks omitted).

The statutory authority to detain an alien depends on where

the alien is in the removal process. Thus, to determine whether

the case is moot requires an examination of the statutes

governing an alien's detention. Three relevant statutes govern

an alien's detention during removal proceedings: Section 1226,

Section 1231(a) (2) and Section 1231(a)(6).

Title 8 of the United States Code, section 1226 governs the

pre-removal-period detention of an alien. Generally, pursuant to

Section 1226, the Attorney General has the authority to arrest

and detain an alien pending a decision on whether the alien is to

be removed from the United States. Section 1226 also sets

certain parameters for pre-removal-period detention, including

when detention is mandatory (such as in the case of criminal

aliens) and when a bond hearing must be held.

5

Case 2:11-cv-02072-FSH Document 27 Filed 07/09/12 Page 5 of 10 PageID: 278
The second relevant removal statute is 8 U.S.C. §

1231(a)(2). Section 1231(a)(2) requires the Attorney General to

detain aliens during the removal period, which lasts 90 days. 

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

Attorney General shall detain the alien”). Under §

1231(a)(1)(B), the removal period begins at the latest of several

events. Specifically,

[t]he 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).

The third relevant removal statute is 8 U.S.C. § 1231(a)(6).

Section 1231(a)(6) provides the Attorney General with

discretionary authority to detain aliens beyond the removal

period, or release them under supervision. Thus, if DHS does not

remove the alien within the 90 day removal period, then §

1231(a)(6) authorizes the Attorney General to either release or

continue to detain the alien. Specifically, § 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

6

Case 2:11-cv-02072-FSH Document 27 Filed 07/09/12 Page 6 of 10 PageID: 279
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); see Zadvydas, 533 U.S. at 678.

In Zadvydas, the Supreme Court held that § 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, 533 U.S. at 689. The Court cautioned that, “once

removal is no longer reasonably foreseeable, continued detention

is no longer authorized by [§ 1231(a)(6) ].” Id. at 699. To

guide habeas courts, the Court recognized six months as a

“presumptively reasonable period” of post-removal-period

detention. Id. at 701. “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 post removal confinement grows, what counts

as the ‘reasonably foreseeable future’ conversely would have to

shrink.” Id. See also Clark v. Martinez, 543 U.S. 371 (2005).

B. Analysis

To determine whether Petitioner's present detention is still

governed by Section 1226, this Court must determine whether or

7

Case 2:11-cv-02072-FSH Document 27 Filed 07/09/12 Page 7 of 10 PageID: 280
not the removal period has begun. As previously discussed, the

removal period begins on the latest of three dates: (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;

or (iii) 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).

Accordingly, in the absence of a stay, Petitioner's removal

period is governed by subsection (i), and began on the date the

order of removal became administratively final, i.e., May 9, 2012

(when the BIA affirmed the order of removal). Accordingly, 2

Petitioner's 90–day removal period began on May 9, 2012, and will 

expire on or about August 8, 2012. As previously stated, Section

1231(a)(2) requires the Attorney General to detain aliens during

the removal period, which lasts 90 days. See 8 U.S.C. §

1231(a)(2) (“During the removal period, the Attorney General

shall detain the alien”). 

Although Petitioner's detention is no longer governed by §

1226(c), his § 2241 Petition is not necessarily moot. Cases that

 An order of removal becomes “final upon the earlier 2

of-(i) a determination by the Board of Immigration Appeals

affirming such order; or (ii) the expiration of the period in

which the alien is permitted to seek review of such order by the

Board of Immigration Appeals.” 8 U.S.C. § 1101(a)(47)(B).

8

Case 2:11-cv-02072-FSH Document 27 Filed 07/09/12 Page 8 of 10 PageID: 281
are “capable of repetition” while “evading review,” Turner v.

Rogers, ––– U.S. ––––, ––––, 131 S.Ct. 2507, 2511, 180 L.Ed.2d

452 (June 20, 2011), fall within an exception to mootness. See

Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011). 

“This exception applies 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.’” Id. at 227 (quoting Weinstein v.

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

Petitioner's case is distinguishable from that of the

petitioner in Diop. In Diop, the Third Circuit held that a

challenge to an 8 U.S.C. § 1226(c) detention was not moot even

though the petitioner had been released from custody after

determining that the challenge fell within the “special mootness

exception for cases that are capable of repetition while evading

review.” Diop, 656 F.3d at 227 (internal citation and quotation

omitted). However, unlike the Petitioner in this case, Diop was

not subject to a final order of removal and had been released

from detention after his criminal conviction was vacated. As a

result, the Third Circuit found that Diop's claim was capable of

repetition because the Government could once again detain him

under § 1226(c) if the vacatur of his conviction was overturned

on appeal. See id. at 228.

9

Case 2:11-cv-02072-FSH Document 27 Filed 07/09/12 Page 9 of 10 PageID: 282
Since Petitioner is no longer detained under § 1226(c), and

his case does not satisfy the “capable of repetition yet evading

review” exception to mootness, this Court will dismiss the

petition as moot. See Rodney v. Mukasey, 340 Fed. Appx. 761, 3

764 (3d Cir. 2009) (appeal of order dismissing § 2241 petition

challenging pre-removal-period detention under 8 U.S.C. § 1226(c)

became moot when BIA dismissed appeal from order of removal: “The

injury alleged, unreasonably long pre-final order of removal

detention under 8 U.S.C. § 1226(c), can no longer be redressed by

a favorable judicial decision”); Ufele v. Holder, 2012 WL 1065877

(3d Cir. March 30, 2012). This Court will dismiss the Petition

and deny Petitioner's claims as moot.

CONCLUSION

For the reasons set forth above, the Petition must be

dismissed. An appropriate order follows.

s/ Faith S. Hochberg 

FAITH S. HOCHBERG

United States District Judge

Dated: July 9, 2012

 The dismissal is without prejudice to the filing of a new 3

§ 2241 petition (in the district of Petitioner's detention) in

the event that the DHS is unable to remove Petitioner under §

1231(a) (6), and Petitioner can assert facts showing good reason

to believe that there is no significant likelihood of

Petitioner's removal in the reasonably foreseeable future.

10

Case 2:11-cv-02072-FSH Document 27 Filed 07/09/12 Page 10 of 10 PageID: 283