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Case 2:13-cv-01751-JLL Document 6 Filed 07/30/13 Page 1 of 8 PageID: 20

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil Action No. 13-1751 (JLL)

OPINION

ORAL SKEETE,

Petitioner,

v.

ERIC HOLDER, JR., et al.,

Respondents.

APPEARANCES:

ORAL SKEETE, A 030 076 039
Essex County Correctional Center
354 Doremus Avenue
Newark, New Jersey 07105
Petitioner Pro Se

LINARES, District Judge:

Oral Skeete filed a Petition for a writ of habeas corpus under 28 U.S.C. § 2241 challenging

his post-removal period detention at Essex County Correctional Facility in the custody of the

Department of Homeland Security (“DHS”) without a hearing. This Court will summarily

dismiss the Petition because Mr. Skeete has not alleged facts showing there is “good reason to
believe that there is no significant likelihood of removal in the reasonably foreseeable future,” as

required by Zadvydas v. Davis, 533 U.S. 678, 701 (2001), to make the government respond with

evidence sufficient to rebut that showing.

Case 2:13-cv-01751-JLL Document 6 Filed 07/30/13 Page 2 of 8 PageID: 21

I. BACKGROUND

Petitioner Oral Skeete asserts that he is a native and citizen of Barbados and has been a

lawful permanent resident of the United States since 1970. (CMJECF No. I at 3, 11). On May 24,

1996, Skeete claims he was convicted of aggravated manslaughter in the New Jersey Superior

Court, Essex County and sentenced to a term of thirty years in prison. (CM/ECF No. 1 at 10).

According to Skeete, on July 17, 1997 he was served with a notice to appear charging him with

removal based on the 1996 manslaughter conviction. (CM/EFC No. 1 at 11). Further, Skeete

alleges that upon being paroled and subsequently released from East Jersey State Prison, the DHS

immediately took him into custody and brought him to the Essex County Correctional Facility

where he is currently detained. (CM/ECF No. 1 at 3, 9-10). Although he does not specifically

allege the exact date on which he was paroled and the DHS took him into custody, Skeete asserts

that he has been detained for approximately six months without a bond or supervised release

hearing. (CM/ECF No. 1 at 3).

Skeete challenges his detention on the following grounds:

(1) his alleged “continued

detention by Respondents is unlawful and contravenes 8 U.S.[C.j § 123 1(a)(6)” in that his

“removal to Barbados, or any other country, is not significantly[] likely to occur in the

[r]easonably foreseeable future” (CM/ECF No. I at 8); (2) his alleged “indefinite” detention

violates his right to substantive due process, as he has “already been detained in excess of

six-months and [his] removal is not significantly likely to occur in the reasonably foreseeable

future” (CM/ECF No. I at 8, 9); (3) his alleged detention without a hearing violates his right to

procedural due process (CMIECF No. 1 at 9-10.)

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Skeete claims that he is entitled to a writ of habeas corpus ordering his immediate

supervised release or a bond hearing before an Immigration Judge, or an order for the DHS to

explain why he should not be released from custody immediately. (CM/ECF No. I at 11).

Additionally Skeete asserts that he is entitled to a declaratory judgment stating that he is eligible to

be released on supervision and he is not a flight risk or danger to the community.

(ECF No. 1 at

12).

A.

Jurisdiction

II. DISCUSSION

Under 28 U.S.C. § 224 1(c), habeas jurisdiction “shall not extend to a prisoner unless...

[hje is in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 224 1(c)(3). A federal court has subject matter jurisdiction under § 2241(c)(3) if two
requirements are satisfied:

(1) the petitioner is “in custody,” and (2) the custody is “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 (1989). This Court has subject matter jurisdiction over the Petition
under § 2241 because Petitioner was detained within its jurisdiction in the custody of the DHS at
the time he filed his Petition, see Spencer v. Kemna, 523 U.S. 1, 7 (1998), and he asserts that his
detention is not statutorily authorized and violates federal law. See Bonhometre v. Gonzales, 414
F.3d 442, 445-46 (3d Cir. 2005).

B. Standard of Review

“Federal courts are authorized to dismiss summarily any habeas petition that appears

legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856(1994); Siers v. Ryan, 773
F.2d 37, 45 (3d Cir. 1985). Habeas Rule 4 requires a district court to examine a habeas petition

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prior to ordering an answer and “[ijf it plainly appears from the petition and any attached exhibits

that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition

and direct the clerk to notify the petitioner.” 28 U.S.C. § 2254 Rule 4, applicable through Rule
1(b). Dismissal without the filing of an answer or the State court record is warranted “if it appears

on the face of the petition that petitioner is not entitled to relief.” Id.; see also McFarland, 512

U.S. at 856; United States v. Thomas, 221 F.3d 430, 437 (3d cir. 2000) (habeas petition may be

dismissed where “none of the grounds alleged in the petition would entitle [the petitioner] to
relief’). With these principles in mind, the Court will now examine the legality of the detention.

C. Legality of Detention

The Immigration and Nationality Act (“INA”) authorizes the Attorney General of the

United States to issue a warrant for the arrest and detention of an alien pending a decision on
whether the alien is to be removed from the United States. See 8 U.S.C. § 1226(a) (“On a warrant
issued by the Attorney General, an alien may be arrested and detained pending a decision on
whether the alien is to be removed from the United States.. .“); see Demore v. Kim, 538 U.S. 510,
530 (2003) (“Detention during removal proceedings is a constitutionally permissible part of that
process”). Once an alien’s order of removal is final, the Attorney General is required to remove
him or her from the United States within a 90-day “removal period.” See 8 U.S.C. §
1231 (a)( 1 )(A) (“Except as otherwise provided in this section, when an alien is ordered removed,
the Attorney General shall remove the alien from the United States within a period of 90 days (in
this section referred to as the ‘removal period’).”)

8 U.S.C. § 123 l(a)(1)(A). This 90-day

removal period begins on the latest of the following:

(i) The date the order of removal becomes administratively final.

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(ii) If the removal order is judicially reviewed and if a court orders a
stay of the removal of the alien, the date of the court’s final order.

(iii) If the alien is detained or confined (except under an
immigration process), the date the alien is released from detention
or confinement.

8 U.S.C. § 123 1(a)(1)(B).

The statute requires the DHS to detain aliens during this 90-day removal period. See 8

U.S.C. § 123 l(a)(2) (“During the removal period, the Attorney General shall detain the alien”).
However, if the DHS does not remove the alien during this ninety day removal period, the DHS is
then given the option to either release the alien on bond or supervised release, or to continue to

detain the alien. Continued detention past the removal period is permissible if the alien, inter

alia, has been convicted of an aggravated felony or if the Attorney General determines the alien to
be either risk to the community or unlikely to comply with the order of removal. 8 U.S.C. §
123 1(a)(6).

This Court concludes that the Supreme Court’s decision in Zadiydas to be dispositive in

the present matter. To avoid serious constitutional concerns, the Supreme Court held §
1231 (a)(6) does not authorize the Attorney General to detain aliens indefinitely beyond the

removal period, but “limits an alien’s post-removal-period detention to a period reasonably

necessary to bring about that alien’s removal from the United States.” Zadvydas, 533 U.S. at 689.

Additionally, a time period of six months has been recognized as a presumptively reasonable

period of post-removal-period detention under § 1231 (a)(6).

Id. at 701. However, in order to

state a claim under § 2241 sufficient to require the government to respond, the alien must provide

in the petition facts showing good reason to believe that there is no significant likelihood of the

alien’s actual removal in the reasonably foreseeable future. Id.

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In this case, Skeete was allegedly served with a notice of removal while serving his thirty

year New Jersey sentence for aggravated manslaughter. When the DHS took him into custody at

the time New Jersey released him approximately six months ago, the removal period began.

Because Skeete asserts that he has been detained by the DHS for approximately six months, this

Court will assume, without deciding, that the six-month presumptively reasonable period of

post-removal-period detention under Zadvydas has recently expired. The expiration of the

presumptively reasonable six-month period however, does not automatically trigger release of the

alien from post-removal-period detention. Id. Rather, the Zadvydas Court expressly held that the

alien must provide in the § 2241 petition good reason to believe removal is not foreseeable before

the Government will be required to respond with evidence sufficient to rebut that showing by a

Petitioner. Id.; see also Barenboy v. Attorney General of US., 160 Fed. App’x 258, 261 n.2 (3d

Cir. 2005) (“Once the six-month period has passed, the burden is on the alien to provide[j good

reason to believe that there is no significant likelihood of removal in the reasonably foreseeable

future. . .Only then does the burden shift to the Government, which must respond with evidence
sufficient to rebut that showing”) (citation and internal quotation marks omitted).

In this Petition, Skeete concludes that his removal to Barbados “is not significantly likely

to occur in the reasonably foreseeable future” (ECF No. 1 at 9), but he “has made no showing
whatever” to substantiate this conclusion. Encarnacion-Mendez v. Attorney General of US., 176
Fed. App’x 251, 254 (3d Cir. 2006). Absent such a showing of fact, the Court cannot grant a
Petition for habeas relief.

Skeete also contends that the DHS violated his procedural due process rights by failing to
give him a bond hearing or an opportunity to demonstrate why “he should not be detained without

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bond or at least a bond hearing.” (CM/ECF No. 1 at 9). But under Zadvydas, an alien is not

entitled to a hearing unless he has been detained beyond the presumptively reasonable six month
period and he alleges facts showing that there is no significant likelihood of removal in the
reasonably foreseeable future. Zadvydas, 533 U.S. at 701.

In the absence of this factual

showing, Zacivydas requires this Court to dismiss the Petition without ordering the government to
respond. The Court cannot reasonably determine, based on the facts alleged in the Petition, that a
good reason to believe Skeete is unlikely to be removed to his native Barbados, or any other
country willing to accept him, in the foreseeable future exists. Skeete has not alleged facts
showing that his detention violates the Constitution, laws or treaties of the United States.’ See,

e.g., Joseph v. United States, 127 Fed. App’x 79, 81 (3d Cir. 2005) (affirming dismissal of 2241
petition challenging detention pursuant to § 1231 (a)(6):
provide ‘good reason’ to believe there is no likelihood ofremoval, 533 U.S. at 701, and [petitioner]
has failed to make that showing here”); Soberanes v. Comfort, 388 F. 3d 1305 (10th Cir. 2004)
(affirming dismissal of § 2241 petition challenging detention pursuant to § 1231 (a)(6) where
petitioner failed to provide good reason to believe that there is no likelihood ofremoval); Akinwale

“Under Zadvydas, a petitioner must

v. Ashcroft, 287 F. 3d 1050, 1052 (11th Cir. 2002) (“in order to state a claim under Zadvydas the
alien not only must show post-removal order detention in excess of six months but also must
provide evidence of a good reason to believe that there is no significant likelihood of removal in
the reasonably foreseeable future”).

111. CONCLUSION

The Petition for habeas relief is dismissed without prejudice to the filing of a new § 2241
petition (in a new case), in the event that Skeete can allege facts substantiating his contention that

Skeete does not claim that the DHS violated its own regulations. Cf Alexander v. Attorney General US., 495 Fed.
App’x 274 (3d Cir. 2012).

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there is good reason to believe that there is no significant likelihood of his removal in the

reasonably foreseeable future.

, /- -/

/

JOSFL LINARES, U.S.D.J.

DATED:

2013

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