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Jules v. Bureau of Immigration and Customs Enforcement

February 13, 2006

PIERRE JULES, PETITIONER
v.
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, RESPONDENTS



The opinion of the court was delivered by: John E. Jones III United States District Judge

ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Petitioner, Pierre Jules ("Petitioner" or "Jules"), filed the above captioned petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his petition, Jules challenges his continued detention by the Bureau of Immigration and Customs Enforcement ("ICE"). Specifically, he claims his continued detention violates his substantive and procedural due process rights under the United States Constitution. Based on Zadvydas v. Davis, 533 U.S. 678 (2001), the Court will refer the petition to the ICE as a request for review under 8 C.F.R. § § 241.4 and 241.13.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY:

On May 28, 1986, Jules, a native and citizen of Haiti, entered the United States as an immigrant. On February 16, 2000, he was convicted in the Court of Common Pleas for Lehigh County, Pennsylvania, for Possession with Intent to Deliver a Controlled Substance and Conspiracy to Possess with Intent to Deliver a Controlled Substance, to wit; Cocaine, in violation of 35 Pa. C.S.A. § 780-113(a)(30) and 18 Pa. C.S.A. § 903, respectively.

In a Notice to Appear dated March 10, 2000, Petitioner was charged with removability pursuant to §§ 237(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii) and (a)(2)(B)(i), as an alien convicted of an aggravated felony as defined in § 101(a)(43) of the INA, 8 U.S.C. § 1101 (a)(43) and as an alien convicted after his admission to the United States of an aggravated felony (alien who is or has been illegal trafficker of controlled substance). By Order dated April 12, 2005, an Immigration Judge in York County, Pennsylvania, found petitioner removable as charged. Jules filed an appeal of the decision of the Immigration Judge to the Board of Immigration Appeals. In a decision dated July 27, 2005, the BIA affirmed the decision of the Immigration Judge and dismissed Jules' appeal. Petitioner, states that, to date, the ICE has been unable to remove him to Haiti.

On November 20, 2005, Petitioner received his first custody review. In December, 2005, Petitioner received a decision from the District Director to continue his detention. The District Director informed Jules that control of his custody case was being transferred to ICE Headquarters Post Order Detention Unit ("HQPDU"). On December 23, 2005, Petitioner states that he "mailed out a copy of letters of support to the HQPDU and request to be released on supervision and Petitioner has not heard anything from INS Headquarters since the case was transferred." (Rec. Doc. 1, Exhibit 5). Petitioner claims that he has "fully cooperated with the request of his deportation officer such as photographs, fingerprints, and any other information about himself." (Rec. Doc. 1). Thus, Petitioner claims that he is trying to facilitate his release from detention. On January 31, 2006, Jules filed the instant petition for writ of habeas corpus in which he seeks to be released.

DISCUSSION:

Detention, release, and removal of aliens ordered removed is governed by the provisions of 8 U.S.C. § 1231. Under § 1231(a), the Attorney General has 90 days to remove an alien from the United States after his order of removal, during which time detention is mandatory. Section 1231(a)(1)(B) provides:

The removal period begins to run 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 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) and (6).

The issue of whether § 1231(a)(6) authorizes the Attorney General to detain a removable alien indefinitely beyond the 90 day removal period or only for a period reasonably necessary to effectuate the alien's deportation has been resolved by the Supreme Court in Zadvydas, 533 U.S. 678, 121 S.Ct. 2491 (2001). Reasoning that the indefinite detention of aliens "would raise serious constitutional concerns," the Court concluded that the statute "limits an alien's post-removal-period detention to a period reasonably necessary to bring about the alien's removal from the United States. It does not permit indefinite detention." Id. at 2498. The Court asserted that "once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." Id. at 2503. To establish uniformity in the federal courts, the court recognized six (6) months as a "presumptively reasonable ...


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