The opinion of the court was delivered by: A. CAPUTO, District Judge
Presently before the Court is Petitioner Nickenson
Louis-Martin's Petition for Writ of Habeas Corpus and Complaint
for Declaratory and Injunctive Relief with Temporary Restraining
Order (Doc. 1), which the Court construes as a petition for writ
of habeas corpus and a motion for emergency stay of removal.
Because Petitioner has not exhausted his administrative remedies
or alleged a violation of his due process rights, I will deny the
motion for stay and dismiss the petition.
This case is the third petition for habeas filed by Mr.
Louis-Martin. In his first filing, I granted a writ of habeas
corpus. See Louis-Martin v. Ridge, 322 F. Supp. 2d 556 (M.D.
Pa. 2004). In that case, the facts before the Court were that
Petitioner immigrated to the United States from Haiti with his
parents in 1989, and thereafter he acquired permanent residency
status. Id. In May of 2002, the Immigration and Naturalization
Service, now known as the Bureau of Immigration and Customs
Enforcement ("ICE"), began removal proceedings against Mr.
Louis-Martin under two theories: (1) that he was convicted of the
aggravated felonies of attempted robbery and attempted criminal
possession of a weapon, a violation of § 237(a)(2)(A)(iii) of the Immigration and
Nationality Act (hereinafter INA)
(8 U.S.C. § 1227(a)(2)(A)(iii)); and (2) that he was convicted of possession
of a firearm, a violation of INA § 237(a)(2)(C)
(8 U.S.C. § 1227(a)(2)(C)). Id. At a hearing on December 17, 2002, the
Immigration Judge ("IJ") found that Mr. Louis-Martin had been
convicted of two aggravated felonies. Id. The IJ also found
that Mr. Louis-Martin had been convicted of possession of a
firearm. Id. Because Mr. Louis-Martin had not submitted a Form
I-589, the IJ deemed Mr. Louis-Martin's claim under the
Convention Against Torture abandoned. Id. Mr. Louis-Martin was
ordered removed from the United States and returned to Haiti.
Id. The Board of Immigration Appeals ("BIA") affirmed the IJ's
decision without opinion. Id. Petitioner then filed his first
petition for writ of habeas Corpus with the Court in February,
2004. Id. I granted the petition, vacated the order of removal,
and remanded the matter to ICE for consideration of the
Convention Against Torture claims. Id.
Upon remand, Mr. Louis-Martin filed a motion to reconsider the
finding that he was convicted of an aggravated felony. (Doc. 1,
Ex. B.) The motion was granted, and that ground for removal was
dismissed. Id. The IJ further held that Mr. Louis-Martin "will
be provided the opportunity of seeking discretionary relief
pursuant to 240A(a), and in the alternative, asylum, withholding
of removal, and Convention Against Torture." Id. That order was
issued on February 2, 2005. Id. On February 22, 2005, the IJ
denied Mr. Louis-Martin's request for Cancellation of Removal.
(Doc. 1 at 4.) On March 1, 2005, Mr. Louis-Martin's Convention
Against Torture claim was denied by the IJ. (Doc. 1 at 5.) Then,
on March 14, 2005, Petitioner filed a second Petition for Writ of
Habeas Corpus and Complaint for Declaratory and Injunctive Relief with
Temporary Restraining Order. See Louis-Martin v. Ridge, No.
3:05-CV-0518. I denied Mr. Louis-Martin's motion because he had
failed to exhaust his administrative remedies and dismissed his
petition without prejudice. Id. On July 26, 2005, Mr.
Louis-Martin received a notice of custody review. (Doc. 1, at 5.)
Mr. Louis-Martin was deemed a flight risk by the District
Director on August 2, 2005, and his detention was continued. On
September 27, 2005, jurisdiction of the custody decision in Mr.
Louis-Martin's case was transferred to the Headquarters Post
Order Unit ("HQPDU"). (Doc. 1, Ex.G.) On September 30, 2005,
Petitioner filed the present Petition for Writ of Habeas Corpus
and Complaint for Declaratory and Injunctive Relief with
Temporary Restraining Order.
In the present petition, Petitioner asks the Court for several
forms of relief, including: (1) an injunction enjoining
Respondents from removing Petitioner; (2) that Petitioner be
granted cancellation of removal; (3) a declaration that
Petitioner is eligible for bail; and (4) that Petitioner be
released on supervised parole. As an initial matter, because
Petitioner is filing the action pro se, I will construe his
petition liberally, see Weaver v. Wilcox, 650 F.2d 22, 26 (3d
Cir. 1981); Henderson v. Fisher, 631 F.2d 1115, 1117 (3d Cir.
1980), and I read his petition as being both a petition for writ
of habeas corpus and a motion for emergency stay of removal.
Pursuant to 28 U.S.C. § 2241, a petition for habeas corpus can
be used to challenge an ICE proceeding as violating the
Constitution, see Liang v. INS, 206 F.3d 308 (3d Cir. 2000);
see also Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999), or
violating the statutory law governing immigration. INS v. St. Cyr,
533 U.S. 289 (2001). However, as with all habeas petitions, there is
a requirement that the petitioner exhaust all administrative
remedies before the Court will hear the matter. See, e.g.,
Duvall v. Elwood, 336 F.3d 228, 231, n. 5 (3d Cir. 2003).
"[E]xhaustion serves the twin purposes of protecting
administrative agency authority and promoting judicial
efficiency. . . ." Id. at 233 (quoting Sundar v. INS,
328 F.3d 1320, 1323 (11th Cir. 2003)). This requirement is
jurisdictional in nature. Id.
1. Cancellation of Removal/Convention Against Torture
It is not entirely clear what errors Petitioner alleges
occurred in the denial of his cancellation of removal and
Convention Against Torture claims before the IJ. However, because
Petitioner has failed to exhaust his administrative remedies with
regard to these claims, I lack jurisdiction to address them
entirely. 8 U.S.C. § 1252 (d)(1), provides, in pertinent part,
that "[a] court may review a final order of removal only if the
alien has exhausted all administrative remedies available to the
alien as of right. . . ." The requisites of § 1252 (d)(1) apply
to petitions for habeas corpus. Duvall, 336 F.3d at 231 n. 5.
In the present case, Petitioner has not exhausted all his
administrative remedies. Petitioner failed to raise an appeal at
the BIA for both the February 22, 2005, decision of the IJ
(cancellation of removal) and the March 1, 2005, decision of the
IJ (Convention Against Torture). It is clear that review of
Petitioner's claims before the BIA was "available as of right,"
see, e.g., Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.
2005), and, therefore, Petitioner's failure to raise such an
appeal at the BIA deprives the Court of jurisdiction over these
claims. 2. Due Process Claim Custody
Certain due process claims are exempt from exhaustion because
the BIA does not have jurisdiction to adjudicate constitutional
issues. Bonhometre, 414 F.3d at 448 n. 7. Petitioner argues
that his detention has exceeded the presumably reasonable six (6)
month period articulated by the Supreme Court in Zadvydas v.
Davis, 533 U.S. 678
(2001). Therefore, he argues that his
continued detention violates his due process rights and that he
should be released immediately. However, Petitioner mistakenly
assumes that the Government must release an alien automatically
when he is held for more than six (6) months pending removal.
Instead, Petitioner's continued detention must remain reasonable,
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. 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.
In NMA v. Ridge, 286 F. Supp. 2d 469 (E.D. Pa. 2003), the
court articulated four types of cases where courts have found "no
significant likelihood of removal":
1. Where no country will accept the detainee;
2. Where the detainee's country of origin refuses to
issue a travel document for the detainee; 3. Where there is no removal agreement between the
detainee's country of origin and the United States;
4. Where there was no definitive answer from the
target country after several months as to whether it
would issue travel papers for a detainee.
Id. at 475. In the present case, Petitioner fails to allege
that there is no significant likelihood of his removal in the
reasonably foreseeable future. Further, there is reason on the
record to believe that removal can be executed in a reasonable
period of time. Specifically, the District Director's decision
states that "ICE has been able to obtain permission from Haiti to
effect [Petitioner's] removal." (Doc. 1, Ex. G.) Lastly, it is
important to note that Petitioner is not being detained absent
periodic review and consideration of his custody status, as
indicated by the August 2, 2005 decision of the District
Director. Thus, although Petitioner's detention has recently
reached the presumably reasonable six (6) month mark, calculated
from March 31, 2005, he has failed to show the unreasonableness
required for a violation of his due process rights.
I construe the present petition as a motion for emergency stay
of removal and a petition for writ of habeas corpus. I will deny
the motion for emergency stay and dismiss the petition because
Petitioner has not exhausted his administrative remedies or
alleged a ...