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Fernandez v. Lowe

United States District Court, M.D. Pennsylvania

July 26, 2018

ANGEL FERNANDEZ, Petitioner,
v.
WARDEN 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 Angel Fernandez (“Petitioner”). For the reasons that follow, the petition will be denied without prejudice.

         I. Background

         Petitioner 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 id.).

         Petitioner 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).

         On or 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).

         On 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.

         Petitioner 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.

         On 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.

         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. Discussion

         Based on Petitioner's two convictions for crimes involving moral turpitude and his conviction for an aggravated felony, he is in mandatory detention in accordance ...


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