United States District Court, M.D. Pennsylvania
RICHARD CAPUTO, UNITED STATES DISTRICT JUDGE
before me is the Petition for Writ of Habeas Corpus under 28
U.S.C. § 2241 (Doc. 1) filed by Petitioner Ricardo Isaac
Fatule-Roque (“Petitioner”). For the reasons that
follow, the petition will be denied without prejudice.
a citizen of the Dominican Republic, entered the United
States on July 3, 1995 as a non-immigrant visitor.
(See Doc. 5, Ex. “1”, 2). On May 10,
2011, Petitioner's wife submitted an I-130 application to
adjust his status. (See id.). That petition was
denied. (See id.).
November 18, 2011, immigration officials encountered
Petitioner at JFK International Airport and granted him
advanced parole to adjust his status. (See id.).
Petitioner then submitted an I-485 Application to Register
Permanent Residence or Adjust Status. (See id.). On
November 30, 2012, Petitioner's application was denied
and his advanced parole terminated. (See id.).
Petitioner, however, remained in the United States undetected
until he was encountered pursuant to the criminal alien
program while he was incarcerated for his arrest and
conviction for theft of government funds in the United States
District Court for the Southern District of New York.
officials charged Petitioner with, inter alia, a
violation of § 212(a)(7)(A)(i)(I) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. §
1182(a)(7)(A)(i)(I) in April 2017. (See id. at Ex.
“2”). Immigration officials took Petitioner into
custody on April 20, 2017. (See id. at Ex.
first appeared in Immigration Court on May 11, 2017, and his
case was reset to allow him to retain counsel. (See
Doc. 12, Ex. “1”, ¶ 4). The Department of
Homeland Security (“DHS”) filed its initial
evidence on May 24, 2017, which included a Statement of
Readiness and Objections to Further Continuances. (See
id. at ¶ 5).
June 6, 2017 master calendar hearing was reset on his motion.
(See id. at ¶ 6). Thereafter, at a master
calendar hearing on June 22, 2017, the Immigration Judge
sustained the charge of removability as an arriving alien
without proper documentation. (See id. at ¶ 7).
Petitioner also indicated at that hearing that he would be
filing an I-360 petition based on his wife who had passed
away. (See id.).
master calendar hearing occurred on August 10, 2017, but
Petitioner failed to produce a receipt for the filing of his
I-360 petition. (See id. at ¶ 8). Next, the
September 28, 2017 master hearing was adjourned sua
sponte, and, thereafter, the scheduled October 26, 2017
master hearing was adjourned on motion by Petitioner.
(See id. at ¶ 9).
received a copy of a filing receipt of Petitioner's I-360
on November 17, 2017. (See id. at ¶ 11). At a
master calendar hearing on January 8, 2018, DHS informed the
Immigration Judge that its file had been sent to U.S.
Citizenship and Immigration Services (“USCIS”)
for expedited adjudication on Petitioner's I-360.
(See id. at ¶ 13). Petitioner's counsel
informed the Immigration Court that USCIS returned the I-360
because Petitioner had checked the wrong box on the form.
(See id.). As a result, the Immigration Court
scheduled a merits hearing for March 7, 2018 for adjustment
of status if the I-360 petition was approved by that time.
(See id.). Otherwise, the hearing would proceed on
asylum-related relief. (See id.). The March 7, 2018
merits hearing was rescheduled sua sponte to July 2,
2018 due to hazardous weather. (See id. at ¶
15). Petitioner was ordered removed by the Immigration Judge
on July 2, 2018.
on the foregoing, Petitioner seeks relief pursuant to 28
U.S.C. § 2241. (See Doc. 1,
generally). Specifically, Petitioner contends that
he is entitled to a bond hearing and that his continued
detention is unconstitutional. (See Docs. 1, 8, 9,
10). The Government disputes that Petitioner is entitled to
relief. (See Docs. 5, 12). The § 2241 petition
is now ripe for disposition.
28 U.S.C. § 2241(c), habeas relief may be extended to a
prisoner only when he “is in custody in violation of
the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). A federal court
has jurisdiction over such a petition if the petitioner is
“in custody” and the custody is allegedly
“in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3);
Maleng v. Cook, 490 U.S. 488, 490, 109 S.Ct. 1923,
104 L.Ed.2d 540 (1989). As Petitioner is currently detained
within this Court's jurisdiction, by a custodian within
the Court's jurisdiction, and asserts that his continued
detention violates due process, this Court has jurisdiction
over his claims. Spencer v. Kemna, 523 U.S. 1, 7,
118 S.Ct. 978, 140 L.Ed.2d 43 (1998); Braden v. 30th
Judicial Circuit Court, 410 U.S. 484, 494-95, 500, 93
S.Ct. 1123, 35 L.Ed.2d 443 (1973); see also Zadvydas v.
Davis, 533 U.S. 678, 699, 121 S.Ct. 2491, 150 L.Ed.2d