United States District Court, M.D. Pennsylvania
Martin C. Carlson, Judge.
John E. Jones III, Judge.
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.
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.).
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
September 5, 2017, Petitioner filed the instant Petition,
asking the Court for immediate release from immigration
custody. (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. (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. (Doc. 10, p. 10).
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).
speaking, 8 U.S.C. § 1226 governs pre-removal order
detention of aliens,  while 8 U.S.C. § 1231 governs
post-removal order detention of aliens. 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. 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. 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. 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.
separate order shall issue.