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Estrella-Disla v. Lowe

United States District Court, M.D. Pennsylvania

October 31, 2017

JOEL ANTONIO ESTRELLA-DISLA, Petitioner,
v.
CRAIG LOWE, et al., Respondents.

          Hon. Martin C. Carlson, Judge.

          MEMORANDUM

          Hon. John E. Jones III, Judge.

         Presently before this Court is Petitioner's Pro Se Petition for Writ of Habeas Corpus (“the Petition”) (Doc. 1) and Respondents' Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1). (Doc. 11). For the reasons that follow, we shall grant the Motion and dismiss the Petition as moot.

         I. FACTUAL BACKGROUND

         Petitioner Joel Antonio Estrella-Disla (“Petitioner”) is a lawful permanent resident of the United States and a native of the Dominican Republic. (Doc. 10, p. 2). On March 2, 2016, Petitioner was convicted in the United States District Court of the District of Connecticut of conspiracy to possess with intent to distribute and distribution of at least 100 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(B)(1)(b)(i) and 846. (Doc. 10, p. 2). Petitioner was subsequently sentenced to a term of imprisonment of twelve months and one day. (Id.).

         On September 6, 2016, Immigration and Customs Enforcement (“ICE”) served Petitioner with a Notice to Appear (“NTA”) charging him with deportability under 8 U.S.C. § 1227(a)(2)(A)(iii) because he is an alien convicted of an aggravated felony. (Doc. 10, p. 2). Following his release from prison on February 3, 2017, Petitioner was transferred to the custody of ICE, where he has remained since. (Id.)

         II. PROCEDURAL HISTORY

         On September 5, 2017, Petitioner filed the instant Petition, asking the Court for immediate release from immigration custody.[1] (Doc. 1). Respondents Craig Lowe, et al. (“the Government”) filed a Response to the Petition on September 29, 2017. (Doc. 8). Thereafter, Magistrate Judge Carlson filed a Report and Recommendation on October 12, 2017, recommending that this Court grant the Petition in part and deny it in part. (Doc. 10, p. 12). Specifically, the Magistrate Judge reasoned that the Petitioner should not be given immediate release given that his detention had lasted only eight months, and further noted the nature of Petitioner's criminal conduct was serious, and much of the pre-removal delay has been caused by Petitioner himself.[2] (Doc. 10, p. 9). However, the Magistrate Judge further recommended that, should Petitioner remain in custody, he should receive an individualized bond hearing before February 3, 2018.[3] (Doc. 10, p. 10).

         The same day Magistrate Judge Carlson issued his Report and Recommendation, the Immigration Court filed an order of removal against petitioner. (Doc. 11-1). Petitioner waived his right to appeal, resulting in the order's finality pursuant to 8 C.F.R. § 1241.1(b) (“An order of removal made by the immigration judge at the conclusion of proceedings under [8 U.S.C. § 1229a] shall become final: (b) Upon waiver of appeal by the respondent[.]”). (Doc. 11-1). In response to the order of removal, the Government filed the instant Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, arguing the case is now moot because Petitioner is subject to a final order of removal. (Doc. 11).

         III. DISCUSSION

         Generally speaking, 8 U.S.C. § 1226 governs pre-removal order detention of aliens, [4] while 8 U.S.C. § 1231 governs post-removal order detention of aliens.[5] As presented, the Petition fails under either section. After Petitioner's removal order became final on October 12, 2017, he is no longer being detained pursuant to Section 1226. Therefore, as the Government has correctly posited, Petitioner's claim pursuant to that section is necessarily moot.[6] Further, Petitioner's claim as it relates to his post-removal order detention is premature. Pursuant to 8 U.S.C. §1231(a)(1)(A), the Attorney General has at least 90 days beginning October 12, 2017 to remove Petitioner.[7] Thus, since Petitioner's post-removal order of detention just began on October 12, 2017, any claim pertaining to the same is not yet ripe.[8] Accordingly, we shall dismiss the Petition without prejudice to Petitioner re-filing a new Section 2241 petition in the event his post-removal detention runs afoul of the time limitations set by Section 1231and Zadvydas.

         A separate order shall issue.

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