The opinion of the court was delivered by: Judge Caldwell
On March 28, 2007, Petitioner Jimmy Roberto Jurado-Delgado, a detainee of U.S. Immigration and Customs Enforcement (ICE) at the York County Prison, York, Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner claims his continued detention is unlawful under Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 191, 150 L.Ed.2d 653 (2001), as he "has been in post-final-order removal [status] for over six month." (Id.)
We will deny the petition because Petitioner's order of removal is not yet final, being the subject of a petition for review in the Third Circuit, where Petitioner has also obtained a stay of his removal. Circumstances here also indicate that Petitioner does not otherwise have a due-process claim based on his continued detention.
Jurado-Delgado is 36 years old and a citizen of Ecuador. (Doc. 1, Petition). Petitioner entered the United States in September 1985 as a legal permanent resident. In 1991, Petitioner was convicted of a summary offense in Pennsylvania. In 1992, Jurado-Delgado was convicted of making an unsworn falsification to authorities. In 1997, Jurado-Delgado was convicted of two crimes involving moral turpitude. These latter, unspecified offenses were the bases for his order of removal. (Id.)
Petitioner has been in ICE custody since November 2, 2005. During his removal proceedings before an Immigration Judge ("IJ"), Petitioner conceded his removability, "both on the initial charge and on a lodged charge that he falsely represented himself to be a United States citizen." (Id.) In a decision dated February 7, 2006, the IJ found the Petitioner removable as an alien convicted of two crimes involving moral turpitude, but granted his request for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2000). Id., See also In re Jurado-Delgado, 24 I&N Dec. 29, 35 (BIA 2006). The IJ also ordered Jurado-Delgado released on his own recognizance, without any financial bond, based on a finding that Petitioner "poses no risk of flight nor any danger to U.S. Society." (Doc. 1, Petition, Ex. B, Written Decision and Order re: Bond Proceedings).
The Department of Homeland Security ("DHS") appealed both the IJ's grant of cancellation of removal and the bond determination. (Id.) On May 2, 2006, the Executive Office for Immigration Review, Board of Immigration Appeals ("BIA"), 2006 WL 1558688, vacated the IJ's bond decision and directed Petitioner held without bond. On September 28, 2006, the BIA vacated the IJ's order granting Petitioner cancellation of removal after finding him ineligible for such relief. See In re Jurado-Delgado, 24 I&N Dec. 29, 35 (BIA 2006).
Jurado-Delgado filed a counseled petition for review with the Third Circuit.*fn1 (Doc. 1, Petition). On December 19, 2006, the court of appeals granted Petitioner's motion to stay his removal. (Id.)
Petitioner asserts that his order of removal became final on September 28, 2006, (id.), and that he has had one custody review since then, dated February 28, 2007. (Id., Ex. C, Decision to Continue Detention - Stay). That decision was based on a review of Petitioner's file and/or his personal interview and consideration of any information he submitted to ICE's reviewing officials. (Id.) It stated as follows:
You have not demonstrated that you would not pose a threat to society or pose a flight risk if you were released from custody. A review of your criminal history shows numerous arrests dating back to 1991. Those offenses include convictions for giving false identification to law enforcement, driving with a suspended license and theft. All of these documents demonstrate your unwillingness to abide by the law and it is not clearly evident that you would report as required for your removal or abide by the requirements of an Order of Supervision if you were to be released from custody. ICE is currently in the possession of a valid travel document issued by the Ecuador Consulate to effect your removal should the stay in your case be lifted.
Based on the above, you are to remain in ICE custody pending your removal from the United States ...
A stay of removal has been granted in your case. If your stay has not been lifted within one year, you will be scheduled for a PostOrder Custody Review (POCR) and served with a Notice to Alien of File Custody Review. If your stay is lifted within one year, a new 90-day removal period will begin on the date that the stay is lifted. If you are not removed within that 90-day removal period a Post-Order Custody review will be conducted at the completion of the new removal period. (Doc. 1, Petition, Ex. C, Decision to Continue Detention - Stay).
On March 15, 2007, Petitioner filed a second request for a panel review of his detention. Id., Ex. A. In his request, Jurado-Delgado asserted that his six-month period of presumptively reasonable post-final-order detention had been incorrectly calculated. According to Petitioner, as his order of removal became final on September 28, 2006, he was improperly afforded a custody review "over 2 months after the expiration of [his] removal period, as opposed to sometime[ ] before its expiration as contemplated by 8 C.F.R. § 241.4(k)(1)(1)." (Id., Ex. A). Petitioner also requested release pursuant to 8 C.F.R. § 241(d), contending his ...