United States District Court, M.D. Pennsylvania
December 2, 2005.
VINCENZO MORENA, Petitioner
ALBERTO R. GONZALES, et al., Respondents.
The opinion of the court was delivered by: JOHN JONES III, District Judge
MEMORANDUM AND ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On May 2, 2005, Petitioner Vincenzo Morena ("Petitioner" or
"Morena"), through counsel, filed a Petition for Writ of Habeas
Corpus ("the Petition") pursuant to 28 U.S.C. § 2241. In his
Petition, Morena, who is detained at the Clinton County Prison,
challenges the constitutionality of his continued detention by
United States Immigration and Customs Enforcement ("ICE"), and
seeks release from confinement.
The Petition was initially referred to United States Magistrate
Judge Thomas M. Blewitt. On June 6, 2005, this Court adopted
Magistrate Judge Blewitt's Report and Recommendation to dismiss
an Eighth Amendment Claim that Morena had raised in his original
Habeas Petition. The following day Morena filed an Amended Petition for Writ of Habeas Corpus ("Amended Petition")
with exhibits. (Rec. Doc. 9.)
On October 4, 2005, Magistrate Judge Blewitt issued a seventeen
page Report and Recommendation, which recommended that Morena's
Amended Petition be denied.
On October 21, 2005, Petitioner filed objections to the Report
and Recommendation. This matter is therefore ripe for
disposition. The Court will address Petitioner's objections and
adopt the Magistrate Judge's Report and Recommendation, thereby
dismissing Morena's Amended Petition and closing the case.
STANDARD OF REVIEW:
When objections are filed to a report of a magistrate judge, we
make a de novo determination of those portions of the report or
specified proposed findings or recommendations made by the
magistrate judge to which there are objections. See United
States v. Raddatz, 447 U.S. 667 (1980); see also
28 U.S.C. § 636(b)(1); Local Rule 72.3. Furthermore, district judges have
wide discretion as to how they treat recommendations of a
magistrate judge. See id. Indeed, in providing for a de
novo review determination rather than a de novo hearing,
Congress intended to permit whatever reliance a district judge,
in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and
recommendations. See id., see also Mathews v. Weber,
423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d
We briefly reiterate the relevant facts of this case.
Petitioner is a native and citizen of Italy and entered the
United States as a lawful permanent resident as an infant in
1973. On March 30, 2001, Petitioner was convicted of Racketeering
in violation of 18 U.S.C. § 1962(d), in the United States
District Court for the Eastern District of New York. (Rec. Doc.
26-2, Ex. C.) Morena was sentenced to fifty-one (51) months
imprisonment. Id. As a result of his conviction, removal
proceedings were commenced on July 23, 2001, when the then-INS
served Morena with a Notice to Appear. (Rec. Doc. 26-2, Ex. A).
The Notice to Appear charged that Morena was removable under §
237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"),
as an alien who had been convicted of an aggravated felony as
defined in § 101(a)(43) of the INA.
On November 4, 2003, an Immigration Judge ("IJ") sitting in
Philadelphia, Pennsylvania ordered Morena removed from the United
States to Italy. (Rec. Doc. 26-2, Ex. D.) Morena appealed this
decision to the Board of Immigration Appeals ("BIA"). On March
25, 2004, the BIA summarily denied his appeal. (Rec. Doc. 26-2, E.)
On April 15, 2004, Morena filed a Petition for Writ of Habeas
Corpus seeking to challenge his removal in the United States
District Court for the Eastern District of New York. Morena v.
Ashcroft, No. 04-1551 (E.D.N.Y.) (Amon, J.) On April 21, 2004,
Morena was granted a temporary stay of deportation pending
resolution of Petitioner's claims in his petition filed in the
Eastern District of New York. By an order dated October 3, 2005,
Morena's petition filed in the Eastern District of New York was
transferred to the United States Court of Appeals for the Third
Circuit. Morena v. Aschroft, No. 04-1551, Rec. Doc. No. 41
(E.D.N.Y. Oct. 3, 2005) (Amon, J.); see also Morena v. Atty
Gen. U.S., No. 05-4494 (3d Cir. 2005). Morena's stay was not
lifted when the case was transferred.
ICE conducted a custody review of Morena in September 2004, and
issued an order on or about November 24, 2004 that found that
Morena should remain in ICE custody during the pendency of the
judicial review. (Rec. Doc. 10-2, Ex. H.) ICE reiterated that
Morena was found removable on the basis of his conviction of an
aggravated felony, found that Morena had a violent criminal
conviction with a weapon, and stated that on that basis he may
pose a threat to society. Id. ICE also noted that a travel
document and removal will easily be obtained once the stay of
removal is lifted. Id. Finally, ICE informed Morena that if the
stay was not lifted within a year of the November 2004 order, he would be scheduled
for a Post-Order Custody Review and served with a Notice to Alien
of File Custody Review.
During the pendency of his petition in the Eastern District of
New York Morena filed the instant Petition challenging his
continued detention in Clinton County Prison.
Petitioner has filed two objections to the report and
recommendation which will be the subject of the narrative that
A. Petitioner's Removal Period has Not Yet Expired
The Magistrate Judge found that "since Petitioner's removal
period has not yet expired, the Attorney General may detain him
under 8 U.S.C. § 1231(a)(6), and his detention does not violate
the Constitution or the Supreme Court's decision in Zadvydas."
(Rep. & Rec. at 11.) Morena objects to this finding asserting
that the Magistrate Judge "limits his holding to a strict
interpretation of the statute and regulations, and implies that
since Mr. Morena is within the removal period, his continued
detention cannot possibly be unconstitutional." (Rec. Doc. 30, at
5.) He then asserts that the Magistrate Judge has failed to
address the question presented in this case "whether the due
process clause of the Fifth Amendment requires that a criminal
alien be afforded an opportunity to be heard on the questions of conditional release pending judicial review of an administrative
removal, the execution of which has been stayed by judicial
order." (Rec. Doc. 30, at 5.)*fn1
First, we agree with Magistrate Judge Blewitt that Petitioner's
removal period has not yet expired, and under the plain language
of 8 U.S.C. § 1231(a)(1)(B)(ii), it has not yet begun. See also
Singh v. Gonzales, 2005 WL 2783248, *4 (E.D. Pa. Oct. 24,
2005). Detention, release, and removal of aliens ordered removed
is governed by the provisions of 8 U.S.C. § 1231. After a final
order of removal the Attorney General has ninety days to remove
an alien from the United States. 8 U.S.C. § 1231(a)(1)(A).
Detention is mandatory during this ninety-day period.
8 U.S.C. § 1231(a)(2). Section 1231(a)(1)(B) provides that the removal
period begins to run on the latest of the following:
(i) The date the order of removal becomes
(ii) If the removal order is judicially reviewed and
if the 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. At the
conclusion of the 90 day period, the alien may be
held in continued detention, or may be released under
continued supervision. 8 U.S.C. §§ 1231(a)(3) & (6).
8 U.S.C. § 1231(a)(1)(B). Zadvydas is inapplicable to
Petitioner, nor should its reasoning be extended to a criminal
alien who has sought judicial review of an administrative order
During the administrative removal proceedings Morena's
detention as an alien convicted of an aggravated felony was
mandatory, proper, and constitutional. See
8 U.S.C. § 1226(c)(1)(B) (authorizing mandatory detention of aliens
convicted of aggravated felonies); Demore v. Kim, 538 U.S. 510,
531 (2003) (upholding the mandatory detention provision of
8 U.S.C. § 1226(c) as constitutional). Morena asserts that because
he has sought judicial review of the administrative removal
order, which has stayed execution of the order and his removal
from the country, he should be entitled to release from custody.
This is simply legally incorrect and logically inconsistent with
the framework of the immigration laws and regulations.
Detention of aliens is governed under two different provisions
of the INA, as detailed below.
The determination of when an alien becomes subject to
detention under INA § 241 rather than INA § 236 is
governed by INA § 241(a)(1). Pursuant to §
241(a)(1)(B)(ii), "[i]f the removal order is
judicially reviewed and if a court orders a stay of
the removal of the alien [pending review]," then the
removal period begins on "the date of the court's
final order." Accordingly, where a court issues a stay pending its review of an
administrative removal order, the alien continues to
be detained under § 236 until the court renders its
Wang v. Ashcroft, 320 F.3d 130
, 147 (2d Cir. 2003) (emphasis
added). It is undisputed that Morena's continued detention has
occurred while he has had the benefit of a judicial stay that has
not yet been lifted. Morena's detention is still mandatory under
8 U.S.C. § 1226(c)(1)(B). See Clavis v. Ashcroft,
281 F. Supp. 2d 490, 493 (E.D.N.Y. 2003); Milbin v. Ashcroft,
293 F. Supp. 2d 158, (D. Conn. 2003); Lovell v. I.N.S., 2003 WL
22282176 (E.D.N.Y. May 21, 2003); see also Quezada-Bucio v.
Ridge, 317 F. Supp. 2d. 1221, 1223 (W.D. Wa. 2004) (discussing
transition from detention under INA § 236 and INA § 241 and
holding "an alien is not subject to INA § 241 detention until the
removal period begins"); Yang v. Chertoff, 2005 WL 2177097, *3
& n. 6 (E.D. Mi. Sept. 8, 2005) ("when a stay of removal is
entered by the reviewing court, the matter is effectively removed
from a final removal order posture under subsection (i) [of
8 U.S.C. § 1231, INA § 241] to a non-final removal posture under
subsection (ii) [of 8 U.S.C. § 1231, INA § 241]).
Morena, an alien subject to mandatory detention during his
removal proceedings, is not entitled to be released pending
judicial review of the administrative removal order.*fn2 Morena's claim of
indefinite detention is premature, as his removal period has not
yet begun. We thus decline Morena's request to extend the current
state of the law.
B. Petitioner Has Had Meaningful Custody Reviews
Petitioner's second objection asserts that the Magistrate Judge
erred in determining that he had meaningful custody reviews by
ICE and that Morena's removal to Italy is reasonably foreseeable
once the stay is lifted. Morena received a custody review in
September 2004 and a decision denying his release was issued in
November 2004. In that order ICE noted that a stay had been
granted in Morena's case and that if the stay was not lifted
within a year Morena would be entitled to a Post-Custody Order of
Review. At that time ICE noted Morena would have another
opportunity in a year for a review.
First, we note that Petitioner relies on a line of cases which
assert that an alien with a stay of a final order of removal is
entitled to a custody review under the procedures set forth in
8 C.F.R. § 241.4. See Haynes v. Dep't Homeland Security, No.
05-339, 2005 WL 1606321 (M.D. Pa. July 8, 2005) (Vanaskie, C.J.)
(Haynes I); see also Oyedeji v. Ashcroft,
332 F. Supp. 2d 747, 753 (M.D. Pa. 2004) (Vanaskie, C.J.). We agree with the Magistrate Judge that
the facts of Morena's case are distinguishable from Oyedeji and
Haynes. Morena has received a meaningful custody review by ICE,
and was scheduled to receive another review in November 2005.
As we have noted in the previous section, if Morena is governed
by the detention provisions of 8 U.S.C. § 1226 during the
pendency of his stay of removal, which we believe he is, his
detention is mandatory under the language of the statute. See
8 U.S.C. § 1226(c)(1)(B). In Haynes I, our colleague Chief Judge
Vanaskie acknowledged that other courts have considered detention
during a stay pending review of an administrative removal order
to be a detention authorized under INA § 236. See Haynes I,
2005 WL 1606321 at *3. After acknowledging that position, Judge
Vanaskie addressed the constitutional dimension of whether the
Fifth Amendment requires that a criminal alien be afforded an
opportunity to be heard on the question of conditional release
pending judicial review of a stayed administrative removal order.
Judge Vanaskie noted that the Supreme Court's holding in
Demore, 538 U.S. 510, which authorized mandatory detention for
certain aliens under INA § 236, did not squarely address the
situation of a criminal alien who acquires a stay pending
judicial review of the administrative order, and directed ICE to
conduct meaningful custody reviews consistent with 8 CFR § 241.4.*fn3 When the government failed to conduct a personal
interview of the alien during his custody review, as previously
directed, Judge Vanaskie ordered him released from custody.
Haynes v. Dep't Homeland Security, No. 05-339, 2005 WL 2452091
(M.D Pa. Oct. 4, 2005) (Vanaskie, C.J.) (Haynes II).
We recognize that this area of law is far from settled,
however, we do not believe Morena is entitled to any greater
reviews than those that ICE has already provided him.
Accordingly, we are not persuaded by Haynes I. The custody
reviews Morena has been provided satisfy due process. Morena is
not governed by the terms of 8 C.F.R. 241.4, because that regulation governs
certain aliens who are detained beyond the removal period. As we
noted in the previous section Morena's removal period has not yet
begun. See 8 U.S.C. § 1231(a)(1)(B)(ii). Morena's continued
detention does not violate due process, and his Petition is
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Magistrate Judge's Report and Recommendation
(doc. 29) is adopted and incorporated to the extent
it is consistent with the reasoning of this order.
2. Morena's Original Petition (doc. 1) is dismissed
3. Morena's Amended Petition for a Writ of Habeas
Corpus (doc. 9) is dismissed.
4. The clerk is directed to close the case file.
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