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McNeil v. Mukasey

March 2, 2009


The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)


Petitioner Paul McNeil ("McNeil"), presently a detainee of the Bureau of Immigration and Customs Enforcement ("ICE"), incarcerated at the Pike County Prison, Lords Valley, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2241 on October 17, 2008, challenging his "prolonged detention" while awaiting a decision from the United States Court of Appeals on his petition for review of his final order of removal. (Doc. 1). He supplemented his petition on October 28, 2008. (Doc. 8-2). For the reasons set forth below, the petition will be denied.

I. Background

McNeil, a native and citizen of Jamaica, who was admitted to the United States at New York, New York on February 17, 1970 as a Lawful Permanent Resident, was issued a notice to appear for removal proceeding under section 240 of the Immigration and Naturalization Act ("INA") on March 21, 2008. (Doc. 9-2, at 16.) The notice to appear charged that he was subject to removal from the United States for violating the following sections of the INA, as amended: 1) Section 237(a)(2)(B)(i) "in that, at any time after admission, you have been convicted of a violation of (or conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act codified at 21 U.S.C. § 802) . . . ;" and 2) Section 237(a)(2)(c) "in that, at any time after admission, you have been convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, in violation of any law, any weapon, part, or accessory which is a firearm or destructive device, as defined in Section pursuant 921(a) of Title 18" of the United States Code. (Id.) On July 11, 2007, immigration officials added a charge pursuant to Section 237(a)(2)(A)(iii) that, "as an alien who has been convicted of an aggravated felony at any time after admission, to wit, an offense constituting illicit trafficking in a controlled substance (as described in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 924(c) of Title 18 of the United States Code), as set forth at sections 101(a)(43)(B) of the INA." (Id. at 18.)

Although McNeil did "not dispute that he is removable as an alien convicted of a controlled substance violation and firearms offense," (Doc. 9-2, at 20), he applied for cancellation of removal as a permanent resident in accordance with section 240A(a) of the INA. (Doc. 9-2, at 5.) The matter proceeded as follows:

On July 31, 2007 [ McNeil] was granted Cancellation of Removal under section 240A(a) by the Immigration Judge. The Government appealed that decision to the BIA on August 10, 2007. On March 05, 2008, the BIA rendered the following Order. The DHS' appeal is sustained, the Immigration Judge's decision is vacated in part and the respondent's application for cancellation of removal is denied in the exercise of discretion. Further Order: The respondent is ordered removed to Jamaica. Subject currently has a petition for review pending with the Third Circuit Court of Appeals. The Third Circuit granted a stay of deportation on May 8, 2008, pending their decision on the petition for review. (Doc. 9-2, at 5.) Review of the Court of Appeals docket sheet via PACER confirms that the stay of removal was originally dated May 8, 2008, and entered on the docket on June 17, 2008. Thereafter, on September 2, 2008, the petition for review was dismissed for failure to file a brief and appendix. On October 1, McNeil filed a motion to reopen and for stay of removal. On November 14, 2008, the motion to reopen and motion to stay were granted and the petition was referred to a merits panel. As of the date of this memorandum, no decision has been issued.

On June 11, 2008, McNeil's custody status was reviewed and it was determined that he would not be released. (Doc. 9-2, at 24.) At that time, he was advised that if he was not removed by September 5, 2008, jurisdiction of future custody decisions would be transferred to the Headquarters Post Order Unit ("HQPDU").

ICE has initiated efforts with the Consulate General and Embassy of Jamaica to obtain McNeil's travel document. (Doc. 9-2, at 8.) A representative from ICE spoke with the Jamaican consulate on September 3, 2008. (Id.) ICE was informed that a travel document is pending. (Id.) ICE represents that efforts to secure the documents will resume once the Third Circuit issues a decision on the petition for review and the stay is lifted.

II. Discussion

Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3). That section states that the writ will not be extended to a prisoner unless "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989).

Post-removal-order detention is governed by 8 U.S.C. § 1231(a). Section 1231(a)(1) requires the Attorney General to attempt to effectuate removal within a ninety day "removal period." The removal period begins 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 a court orders a stay of the removal of the alien, the ...

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