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Rojas v. Lowe

United States District Court, Third Circuit

October 9, 2013

ROMIRO E. ROJAS, Petitioner,
v.
CRAIG LOWE, et al., Respondents.

REPORT AND RECOMMENDATION

SUSAN E. SCHWAB, Magistrate Judge.

In this immigration habeas matter, pursuant to 28 U.S.C. § 2241, the petitioner, Romiro Enrique Rojas ("Rojas"), seeks to be released from continued detention by Immigration and Customs Enforcement ("ICE"). After filing the petition, however, ICE released Rojas from custody under an order of supervision pending removal. Because Rojas has achieved the result that he sought in filing his habeas corpus petition, I recommend that the case be dismissed as moot.

I. Procedural History.

On April 7, 2013, Rojas, by and through his counsel, initiated this action by filing a petition for writ of habeas corpus. Doc. 1. On April 9, 2013, I issued an order for respondents to show cause. Doc. 2. Subsequently, respondents twice moved for an enlargement of time, and I granted both motions. Docs. 3, 4, 5 & 6. Thereafter, on May 3, 2013, respondents filed a response to the habeas petition, and on May 20, 2013, Rojas filed his reply. Docs. 7 & 8.

After Rojas had filed his reply, and while the case was pending review, respondents filed a brief suggesting that the case should be dismissed as moot. Doc. 11. In the brief, respondents claim that Rojas was released from ICE custody under an order of supervision. Id. at 2. Respondents also filed a declaration from an ICE official in the Pike County office, wherein the declarant declared that Rojas was released from ICE custody on August 27, 2013. Doc. 11-1. Rojas has not timely responded to respondents' suggestion of mootness or attempted to contact the Court with regard to his petition.[1]

II. Background.

Rojas, a native and citizen of the Dominican Republic, entered the United States as a lawful permanent resident on March 8, 2003, and resided in Scranton, Pennsylvania. Doc. 1 at ¶ 3; Doc. 7-1 at 58. While residing in Scranton, Rojas was charged with possession of marijuana and possession of drug paraphernalia in January 2009. Doc. 1 at ¶ 13. Two months later, in March 2009, Rojas pleaded guilty to simple possession of marijuana. Id. Thereafter, on November 16, 2009, Rojas was charged with possession of marijuana, possession of drug paraphernalia, and possession of a controlled substance. Doc. 1 at ¶ 14. Rojas pleaded guilty to possession of drug paraphernalia on December 15, 2009. Id.

On January 28, 2010, ICE issued a Notice to Appear informing Rojas that based upon his convictions, he was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(B)(i). Doc. 7-1 at 3, 5. The Notice to Appear was served on Rojas in person on December 29, 2010, and he was placed into removal proceedings. Doc. 7-1 at 4.

On April 28, 2011, Rojas, through his immigration counsel, filed a motion with the Immigration Court contesting his removability under 8 U.S.C. § 1227(a)(2)(B)(i). Specifically, Rojas requested that the charge of removability be dismissed and that the removal proceedings be terminated. Doc. 7-1 at 38. However, on May 19, 2011, the Immigration Court denied Rojas' motion. Doc. 7-1 at 50. Eleven days later, on May 30, 2011, Rojas moved to continue the Master Calendar Hearing, and the Immigration Judge granted the motion. Doc. 7-1 at 54, 57.

A couple of months later, on September 22, 2011, the Immigration Court issued his decision and ordered that Rojas be removed from the United States to the Dominican Republic. Doc. 7-1 at 58. Thereafter, Rojas appealed the Order of Removal to the Board of Immigration Appeals ("BIA") on October 19, 2011. The BIA issued a Notice on November 14, 2011, setting a date of December 5, 2011, for the parties to submit their briefs. Doc. 7-1 at 62. Rojas requested an extension of the briefing schedule. Doc. 7-1 at 64. The BIA granted the request and extended the due date for briefs to December 27, 2011. Doc. 7-1 at 66.

On January 17, 2012, the BIA issued its decision dismissing Rojas' appeal. Doc. 7-1 at 67. The BIA found that Rojas' 2009 drug paraphernalia conviction "constitutes a controlled substance violation pursuant to section 237(a)(2)(B)(i) of the INA." Doc. 7-1 at 69. Subsequently, Rojas filed a petition for review and requested an emergency stay with the United States Court of Appeals for the Third Circuit. On January 31, 2012, the Third Circuit Court issued an Order granting Rojas an emergency stay of removal while his Petition for Review remained pending, and the appeal was reheard on May 29, 2013. On August 23, 2013, after the appeal was reheard, the Third Circuit reversed Rojas' removal and remanded the case, stating that "the Department must show that the conviction for which it seeks to remove a foreign national involved or was related to a federally controlled substance... we conclude that the Department failed to meet its burden." Rojas v. Attorney Gen. of U.S., No. 12-1227, 2013 WL 4504648, at *1 (3d Cir. Aug. 23, 2013).

Last, as mentioned, Rojas filed his habeas corpus petition on April 7, 2013. In his petition, Rojas challenges his continued detention in ICE custody, arguing that it violates notions of Due Process. As a remedy, Rojas requests to be released from ICE custody. Doc. 1 at 20; see also Doc. 8 at 2. However, on August 27, 2013, Rojas received the requested relief, as he was released under an order of supervision pending removal. See Doc. 11-1.

III. Discussion.

Habeas corpus is the appropriate vehicle for obtaining release from immigration custody where there is inordinate delay pending removal. See Zadvydas v. Davis, 533 U.S. 678, 687 (2001) (specifying that 28 U.S.C. § 2241(c)(3) confers jurisdiction on federal courts to consider post removal-period detention cases). The maximum time an alien can be detained pending removal is limited by statute to 90 days. See 8 U.S.C. § 1231(a)(1)(A). Some aliens, however, including those who have committed certain crimes or "have been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period" and if they are released, may be subject to other terms of supervision. See 8 U.S.C. § 1231(a)(6). In Zadvydas, the Supreme Court recognized six-months as a presumptively reasonable time ...


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