The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Petitioner John Fitzgerald Hall ("Petitioner" or "Hall"), a detainee of the United States Immigration and Customs Enforcement ("ICE") Office, who is being held at the York County Prison in York, Pennsylvania, initiated the above action pro se by filing a Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2241. (Doc. 1.) By Order dated May 29, 2012, we directed Respondent to answer the allegations of the Petition within twenty-one (21) days. (Doc. 3.) Our Order also provided that Hall would be permitted to file a reply brief within fourteen (14) days from the date of filing of a response. (Id.) On June 14, 2012, Respondent filed a Response (Doc. 6) and supporting exhibits (Doc. 6-1). Although the deadline for Hall to file a reply has expired, the docket reflects that no reply has been filed. Accordingly, the Petition is fully briefed and ripe for disposition. For the reasons set forth herein, the Petition will be dismissed without prejudice as premature.
Hall is a citizen and native of Jamaica who was admitted to the United States in 1987 as a lawful permanent resident. (Doc. 1 at 2.*fn1 ) On April 6, 2011, Hall pled guilty in the Court of Common Pleas of Lehigh County, Pennsylvania, to possession with intent to deliver a controlled substance (i.e., 7.7 pounds of marijuana), a felony in violation of 35 Pa. Cons. Stat. § 780-113. (Doc. 6-1 at 3, Ex. 1.) Hall was sentenced to one (1) year probation for this offense. (Id.)
On April 12, 2011, the Department of Homeland Security ("DHS") served Hall with a Notice to Appear, charging him as removable under 8 U.S.C. §1227(a)(2)(B)(i) for having been convicted of a crime relating to a controlled substance. (Id. at 3, 5.) Subsequently, on September 15, 2011, the DHS filed an additional charge of removability against Hall, alleging that he also was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as a result of his conviction for an aggravated felony (drug trafficking). (Id. at 6, Ex. 2.) During Hall's removal proceedings, the immigration judge granted Hall several continuances to allow him to pursue post-conviction relief. (Id. at 7-9, Ex. 3.) However, the immigration judge ultimately determined that the amount of marijuana at issue, which Hall did not dispute, foreclosed any contention that Hall's conviction did not constitute an aggravated felony, and therefore concluded that no further continuances were warranted, and ordered Hall removed to Jamaica. (Id. at 8.)
Hall appealed the Immigration Judge's decision to the Board of Immigration Appeals ("BIA"). (Id. at 10-12, Ex. 4.) On March 7, 2012, the BIA dismissed Hall's appeal. (Id. at 12.)
On March 26, 2012, Hall filed a petition for review, as well as a motion for a stay of removal, with the United States Court of Appeals for the Third Circuit. (Hall v. Attorney General of the United States, C.A. No. 12-1807.*fn2 ) By Order dated May 10, 2012, the Third Circuit denied Hall's motion for a stay because he had failed to satisfy the standard for obtaining a stay; specifically, the Court determined that he had failed to demonstrate a likelihood of success on the merits of the petition for review. (Doc. 6-1 at 14, Ex. 5 (citing Nken v. Holder, 129 S. Ct. 1749, 1756 (2009).)
Hall filed the instant Petition on May 23, 2012. (Doc. 1.) Two days later, on May 25, 2012, the DHS performed a custody review for Hall. (Doc. 6-1 at 15, Ex. 6.) Following that review, the DHS issued a Decision to Continue Detention notifying Hall that DHS would continue his custody beyond the initial 90-day period. (Id.) The Decision states as follows:
Due to your recent conviction for Possession with Intent to Deliver a Controlled Substance, ICE believes you are a potential danger to the community. ICE has also been in contact with the Consulate of Jamaica and believes that a travel document will be issued in your case in the near future.
Based on the above, you are to remain in ICE custody pending your removal from the United States. You are advised that you must demonstrate that you are cooperating with the ICE's efforts to remove you by taking whatever actions the ICE requests to effect your removal.
You are also advised that any willful failure or refusal on your part to make timely application in good faith for travel or other documents necessary for your departure, or any conspiracy or actions to prevent your removal or obstruct the issuance of a travel document, may subject you to criminal prosecution under 8 U.S.C. § 1253(a). (Id.) The Decision also advises Hall that if he has not been released or removed from the United States by September 3, 2012, jurisdiction of the custody decision in his case will be transferred to the Case Management Unit ("HQCMU")*fn3 . (Id.)
Preliminarily, we observe that, in his Petition, Hall misidentifies the statutory authority for his detention. He alleges that his detention is "unconstitutional and unreasonably prolonged" under 8 U.S.C. § 1226(c) and cites case law relating to the interpretation of that statute. (See Doc. 1 at 3-5.) Title 8 U.S.C. § 1226(c) requires mandatory detention of criminal aliens during the pendency of removal proceedings. However, an immigration judge has ordered Hall's removal from the United States, and the BIA dismissed Hall's appeal from that order on March 7, 2012. "An order of removal made by the immigration judge at the conclusion of proceedings . . . shall become final . . . [u]pon dismissal of an appeal by the Board of Immigration Appeals." 8 C.F.R. § 1241.1(a); see also Leslie v. U.S. Att'y Gen., 363 Fed. Appx. 955, 957 (3d Cir. 2010) ...