United States District Court, M.D. Pennsylvania
CHRISTOPHER C. CONNER, Chief District Judge.
Petitioner Cleveland Myles-Barnes ("petitioner"), presently a detainee of the Department of Homeland Security, 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 August 28, 2014, challenging the lawfulness of his continued detention. (Doc. 1). The petition is ripe for disposition and, for the reasons set forth below, will be dismissed without prejudice.
Petitioner, a native and citizen of Jamaica, illegally entered the United States at an unknown location on an unknown date. (Doc. 1, p. 18). On October 5, 2007, he pled guilty in the United States District Court, Northern District of Texas, to False Representation of Citizenship in violation of 18 U.S.C. § 911. (Doc. 6-1, p. 2). He was sentenced to an eight month term of imprisonment. (Id.) On August 29, 2013, he was apprised via a Notice to Appear that he was subject to removal pursuant to 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"), as amended, as an alien present in the United States without being admitted or paroled, and Section 212(a)(6)(C)(ii) of the INA, as an alien who falsely represents, or has falsely represented himself to be a citizen of the United States for purpose or benefit under the INA or any other federal or state law. (Doc. 1, pp. 18-19). On September 23, 2013, he was ordered removed to Jamaica. (Id. at 16).
On December 12, 2013, ICE reviewed petitioner's custodial status and issued a decision to continue his detention based on the expectation that the Jamaican Consulate would issue a travel document in the foreseeable future, as well as the determination, based on his criminal history of drug convictions and false claims, that he was a danger to the community and a flight risk. (Doc. 1, p. 29).
In April and July, 2014, the Department of Homeland Security's Headquarters Custody Management Unit in Washington D.C., reviewed petitioner's custodial status and concluded that, because the Jamaican government had not denied issuance of a travel document, his removal was expected to occur in the reasonably foreseeable future. (Id. at 30-31).
The instant petition was filed on August 28, 2014.
A habeas petition may be brought by a prisoner who seeks to challenge either the fact or duration of his confinement, as is the case here. Preiser v. Rodriguez , 411 U.S. 475, 494 (1973); Tedford v. Hepting , 990 F.2d 745, 748 (3d Cir. 1993). Clearly, a habeas corpus petition is the appropriate vehicle to obtain the relief petitioner seeks.
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 ninety 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 following:
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 ...