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 Angel
Fernandez (“Petitioner”). For the reasons that
follow, the petition will be denied without prejudice.
is a citizen and national of the Dominican Republic.
(See Doc. 4, Ex. “1”, 2-3). Petitioner
entered the United States on August 5, 1994 as a
non-immigrant visitor, class P-1. (See id. at 3). On
June 12, 1996, Petitioner adjusted his status to lawful
permanent resident on a conditional basis CR-6 based on a
petition filed by his wife who was a United States citizen.
(See id.). At some point thereafter, Petitioner left
the United States, but he was paroled back into the United
States on September 3, 2001 pending determination of his
right to reenter. (See id.). The conditions of his
residence were removed on January 3, 2003. (See
was subsequently encountered by immigration officials
pursuant to the criminal alien program while he was
incarcerated for his June 21, 2016 conviction in the United
States District Court for the District of New Jersey for the
offense of conspiracy to commit theft of government property.
(See id. at 2).
about January 18, 2017, immigration officials charged
Petitioner with being removable from the United States
pursuant to §§ 237(a)(2)(A)(ii) and
237(a)(2)(A)(iii) of the Immigration and Nationality Act
(“INA”) based upon two convictions for crimes
involving moral turpitude and having been convicted of an
aggravated felony. (See id.). According to
Petitioner, he was taken into custody by immigration
officials on April 9, 2017. (See Doc. 1, 2).
December 4, 2017, the Immigration Judge denied a waiver under
§ 601, an application by Petitioner for cancellation of
removal under § 212(h), and an application for
adjustment of status under § 245 and ordered him removed
from the United States. (See Doc. 4, Ex.
“3”). On January 2, 2018, Petitioner filed a
notice of appeal to the Board of Immigration Appeals
(“BIA”). (See Doc. 1, 1-3; Doc. 4, 3).
Petitioner's appeal was dismissed on May 5, 2018.
has since filed an appeal with the United States Court of
Appeals for the Third Circuit. See Fernandez v. Att'y
Gen., No. 18-2136. On May 31, 2018, the Third Circuit,
pursuant to a standing order, temporarily granted Petitioner
a stay of removal until such time as it can consider his
motion for a stay of removal. See id. That motion
was fully briefed as of June 18, 2018. See id.
December 13, 2017, Petitioner filed for relief pursuant to 28
U.S.C. § 2241. (See Doc. 1,
generally). Specifically, Petitioner contends that
his continued detention is unconstitutional and that he
should either be released or an individualized bond hearing
should be ordered. (See Doc. 1, generally).
The Government disputes that Petitioner is entitled to
relief. (See Doc. 4, generally). 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
on Petitioner's two convictions for crimes involving
moral turpitude and his conviction for an aggravated felony,
he is in mandatory detention in accordance ...