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stating that habeas jurisdiction remains in the District Court "if the detention challenge is merely ancillary to removal proceedings" and is directed towards "some essentially legal issue"
Summary of this case from Flores-Powell v. ChadbourneOpinion
CIVIL ACTION NO. 07-10139-DPW.
September 12, 2007
MEMORANDUM AND ORDER
The petitioner continues to be detained following the order of removal which became final as a result of the dismissal of his administrative appeal by the Board of Immigration Appeals (BIA) on June 11, 2007. The petitioner is pursuing judicial review of the order in the United States Court of Appeals for the First Circuit. Karim v. Gonzales, First Circuit No. 07-1981. The government has reasserted the motion to dismiss it filed when the petitioner challenged the order of detention entered by the Immigration Law Judge while the order of removal was on administrative review. I will now allow the motion to dismiss.
This case no longer presents the question under what circumstances, if any, a District Court may have jurisdiction to consider a challenge to detention during administrative removal proceedings. The government contended that this court was without such jurisdiction. However, if the detention challenge is merely ancillary to removal proceedings and is directed not to the exercise of executive discretion but rather to some essentially legal issue, it would appear that habeas jurisdiction remains in the District Court. Hernandez v. Gonzales, 424 F.3d 42 (1st Cir. 2005). But the fine points of District Court jurisdiction pre-final removal order, including here the failure of the petitioner to pursue exhaustion of his administrative remedies, are no longer at the forefront in this case.
Rather the question currently presented is whether petitioner's continued detention pending judicial review of the final administrative removal order may be challenged. I find no constitutional or statutory basis for entertaining such a challenge at this time.
As a matter of constitutional interpretation, the Supreme Court has established a presumptive period of six-months (following the final order of removal) for reasonable detention pending removal and has specifically held that "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 v. Davis, 121 S.Ct. 2491, 2505 (2001).
As a statutory matter, Congress has directed that during a removal period, "the Attorney General shall detain the alien." 8 U.S.C. § 1231(a)(2). The "removal period" is the 90 day period beginning on the latest of several events set forth in 8 U.S.C. § 1231(1)(B)(i), (ii) and (iii). Typically, the 90 day removal period begins on "[t]he date the order of removal becomes administratively final." 8 U.S.C. § 1231(1)(B)(i). However, "[i]f the removal order is judicially reviewed and the court orders a stay of removal . . ." the removal period begins on the date of the court's final order. 8 U.S.C. § 1231(1)(B)(ii).
Here, the petitioner sought a stay of removal from the United States Court of Appeals for the First Circuit but his motion wasdenied on August 8, 2007. Karim v. Gonzales, First Circuit No. 07-1981 (Order, dated Aug. 8, 2007). Thus, in the absence of a stay of removal, 8 U.S.C. § 1231(a)(1)(B)(ii) does not apply for purposes of determining when the 90 day removal period begins. Rather, in this case, petitioner's removal period began on June 11, 2007 (the date of the final order of removal by the BIA), pursuant to 8 U.S.C. § 1231(a)(1)(B)(i).
Under 8 U.S.C. § 1231(a)(1)(B)(ii), the 90 day period begins only "[i]f the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, [on] the date of the court's final order." Id. (emphasis added). See Bah v. Cangemi, 489 F. Supp. 2d 905, 917 (D. Minn. 2007) ("When the BIA dismissed [petitioner's] appeal of his removal order on May 23, 2005, that order became `administratively final.' True, [petitioner] petitioned the Eighth Circuit for review of the BIA order and for a stay, but that court denied [petitioner's] stay motion. In the absence of a stay, § 1231(a)(1)(B)(ii) did not apply, and the mere fact that [petitioner's] appeal was pending did not defer the start of his removal period. Therefore, until the Eighth Circuit granted [petitioner's] petition for review, it seemed that [petitioner's] removal period began on May 23, 2005.").
Although the 90 day statutory removal period from June 11, 2007 has now expired, a due process claim under Zadvydas is not triggered if the alien has been detained for less than six months (180 days) after a final order of removal has issued. See Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002) (holding that the "six-month period . . . must have expired at the time [the petitioner's] § 2241 petition was filed in order to state a claim under Zadvydas"); accord Hodel v. Aguirre, 260 F. Supp. 2d 695, 699 (N.D. Ill. 2003) ( Zadvydas not implicated where criminal alien held less than six months). Thus, petitioner's claim of unlawful detention is premature since the 180 days has not yet expired.
Accordingly, the respondent's motion to dismiss (#5) is hereby GRANTED and this action is DISMISSED without prejudice.
The clerk is directed to enter a judgment of dismissal. All pending motions of the petitioner (motions ## 12, 13, 16) are DENIED as moot in view of this Memorandum and Order for dismissal.