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Fatule-Roque v. Lowe

United States District Court, M.D. Pennsylvania

July 26, 2018

RICARDO ISAAC FATULE-ROQUE, Petitioner,
v.
CRAIG A. LOWE, Respondent.

          MEMORANDUM

          A. RICHARD CAPUTO, UNITED STATES DISTRICT JUDGE

         Presently 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.

         I. Background

         Petitioner, 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.).

         On 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. (See id.).

         Immigration 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. “3”, 2).

         Petitioner 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).

         Petitioner's 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.).

         Another 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).

         DHS 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.

         Based 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.

         II. Legal Standard

         Under 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 653 (2001).

         III. ...


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