The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FREUD LABARRIERE, No. 4:19-CV-00309
Petitioner, (Judge Brann)
v.
CLAIR DOLL, et al.,
Respondents.
MEMORANDUM OPINION
DECEMBER 16, 2019
Presently before the Court is the petition for a writ of habeas corpus of
Petitioner Freud Labarriere filed pursuant to 28 U.S.C. § 2241 in which he seeks a
bond hearing to remedy his allegedly unconstitutional prolonged immigration
detention.1 Following an order to show cause, the Government filed a response to
the petition as well as an update to Petitioner’s immigration status.2 Petitioner has
filed no reply. For the reasons set forth below, this Court will deny the petition
without prejudice.
I. BACKGROUND
Petitioner is a native of Haiti who entered this country as a permanent resident
on October 26, 1989.3 Petitioner was thereafter convicted of various crimes
1 ECF No. 1.
2 ECF Nos. 6, 7.
including disorderly conduct, driving under the influence, and possession of
marijuana and drug paraphernalia.4 In addition to these convictions and various
other arrests, Petitioner also has many traffic and non-traffic citations, for which
some bench warrants have been issued.5
On July 27, 2018, ICE arrested Petitioner as a result of a targeted operation.6
At the time of his arrest, Petitioner’s vehicle emitted a strong odor of burnt marijuana
and Petitioner was in possession of marijuana.7 ICE contacted both local law
enforcement and the Lancaster County Sheriff’s Office who advised that it had eight
active bench warrants totaling more than $20,000.8 ICE placed a detainer on
Petitioner and transported him to the Lancaster County Prison to answer for his
outstanding warrants.9
On August 21, 2018, ICE regained custody of Petitioner and commenced
removal proceedings after Petitioner posted bail on his two most recent DUI
arrests.10 On that day, ICE issued a Notice to Appear charging Petitioner as
removable pursuant to § 237(a)(2)(B)(i) of the Immigration and Nationality Act
4 ECF No. 6 at 1-2.
5 See id. at 3-4.
6 Id. at 4.
7 Id.
8 Id.
9 Id.
10 Id.
(“INA”) as an alien convicted of an aggravated felony offense where he, as an alien,
violated any law related to a controlled substance.11
At Petitioner’s December 4, 2018 hearing on his application for relief from
removal, the immigration judge granted Petitioner cancellation of removal.12 On
December 11, 2018, the Department of Homeland Security (“DHS”) appealed that
decision to the Board of Immigration Appeals (“BIA”).13 On February 7, 2019, the
BIA remanded the appeal because the audio tapes of the hearing were not provided
with the administrative record.14 On or about February 28, 2019, the audio recording
had been located and the case was resubmitted to the BIA.15
Since that resubmission, the BIA has sustained DHS’s appeal and ordered
Petitioner removed.16 Petitioner appealed that decision by filing a petition for review
and a motion for stay with the United States Court of Appeals for the Third Circuit.17
The Third Circuit then granted a temporary stay of removal pursuant to a standing
practice order.18 On October 23, 2019, the Third Circuit vacated the temporary stay
and denied his motion to stay removal.19 According to the Respondents, that denial
11 Id. at 4-5.
12 Id. at 5.
13 Id.
14 Id.
15 Id.
16 See ECF No. 7 at 1.
17 See id.; Labarriere v. Att’y Gen., No. 19-2874 (3d Cir. 2019).
18 Id.
19 See id. at 1-2.
triggered the start of the removal period on October 23, 2019, and Petitioner shifted
on that date to post-final order detention status pursuant to § 241(a) of the INA.20
II. DISCUSSION
A. 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.”21 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.”22 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.23
B. Analysis
In his habeas petition, Petitioner contends that his ongoing immigration
detention in the absence of a bond hearing violates his right to Due Process. In order
to evaluate this claim, the Court must preliminarily determine the statutory basis for
Petitioner’s detention as that basis controls Petitioner’s entitlement to relief. While
20 See id. at 2 (citing 8 U.S.C. § 1231(a), and Leslie v. Att’y Gen., 678 F.3d 265, 270 (3d Cir.
2012)).
21 28 U.S.C. § 2241(c)(3).
22 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989).
23 Spencer v. Kemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Court, 410 U.S.
484, 494-95, 500 (1973). See also Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
Petitioner contends that he is subject to detention under 8 U.S.C. § 1226(c), which
applies to aliens with certain types of criminal convictions prior to the issuance of a
final order of removal, the Government now argues that Petitioner is subject to a
final order of removal and is therefore subject to detention under the post-final order
detention statute, 8 U.S.C. § 1231(a).
In this matter, although Petitioner was initially granted relief by an
immigration judge, the BIA ordered Petitioner removed to Haiti by way of a decision
issued on July 19, 2019. Such an order, when entered by the BIA in the absence of
a remand, constitutes an administratively final order of removal.24 Once an alien is
subject to an administratively final removal order, his detention is authorized by 8
U.S.C. § 1231(a) unless and until the alien seeks judicial review of his removal order
and the Court of Appeals having jurisdiction over his petition for review grants him
a stay of removal.25 If the alien seeks and is granted a stay by the Court of Appeals,
his detention reverts to pre-final order status, and the alien returns to detention
pursuant to 8 U.S.C. § 1226.26 It is the grant of a stay by the Court of Appeals,
however, and not simply the filing of a request or motion for a stay, which alters an
alien’s status.27
24 See 8 C.F.R. § 1241.1(a) (order of removal becomes final upon final decision on appeal by
BIA).
25 See, e.g., 8 U.S.C. § 1231(a)(1)(B)(ii) (delaying start of § 1231 detention where “the removal
order is judicially reviewed and . . . a court orders a stay of the removal of the alien”); Leslie,
678 F.3d at 268-70.
26 Leslie, 678 F.3d at 268-70.
27 Id. at 268-70.
Here, the BIA ordered Petitioner removed by way of its July 19, 2019
decision. As that decision is administratively final, Petitioner is subject to § 1231
detention unless and until he both seeks review of the BIA’s decision in the Court of
Appeals and is granted a stay of removal by the Court of Appeals. Although
Petitioner has filed a petition for review and a motion for a stay in the Third Circuit,
which was temporarily granted by a standing practice order, the Third Circuit denied
his motion for a stay on October 23, 2019. The statutory language on which the
Third Circuit based its decision in Leslie is clear that the start of the removal period,
and in turn the onset of § 1231 detention will only be delayed if an alien’s removal
order is judicially reviewed and “a court orders a stay of the removal order.”28 Thus,
because Petitioner is subject to an administratively final removal order in the form
of the BIA’s July 19, 2019 decision and the denial of the requested stay by the Third
Circuit on October 23, 2019, Petitioner remains detained pursuant to 8 U.S.C. §
1231(a).
Because Petitioner is subject to detention under § 1231(a), the propriety of his
detention is controlled by the Supreme Court’s decision in Zadvydas and the Third
Circuit’s decision in Guerrero-Sanchez v. Warden York County Prison.29 As the
Supreme Court has explained,
Under [§ 1231(a)], when an alien is ordered removed, the Attorney
General is directed to complete removal within a period of 90 days, 8
28 8 U.S.C. § 1231(a)(1)(B)(ii).
29 905 F.3d 208, 225-26 (3d Cir. 2018).
U.S.C. § 1231(a)(1)(A), and the alien must be detained during that
period, § 1231(a)(2). After that time elapses, however, § 1231(a)(6)
provides only that aliens “may be detained” while efforts to complete
removal continue.
In Zadvydas, the Court construed § 1231(a)(6) to mean that an alien
who has been ordered removed may not be detained beyond “a period
reasonably necessary to secure removal,” and it further held that six
months is a presumptively reasonable period. After that, the Court
concluded, if the alien provides good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future,”
the Government must either rebut that showing or release the alien.30
Pursuant to Zadvydas, any challenge to § 1231(a) detention by an alien who has been
detained pursuant to § 1231(a) for less than six months must be dismissed as
prematurely filed.31 Although the Third Circuit has provided an alternative avenue
for relief in the form of a bond hearing for those aliens whose detention under §
1231(a) has become prolonged, the Third Circuit, too, has recognized that such
challenges may not be brought until the alien has been held under § 1231(a) for at
least six months.32
Zadvydas and Guerrero-Sanchez thus make clear that an alien detained
pursuant to § 1231(a) must be held during the statutory ninety-day removal period
and that he may not challenge his detention under § 1231 until the presumptively
reasonable six-month period flowing from that removal period has expired. Because
30 Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 843 (2018) (internal case citations
omitted).
31 Jennings, 138 S. Ct. at 843; Zadvydas, 533 U.S. at 701.
32 See Guerrero-Sanchez, 905 F.3d at 225-26.
Petitioner is well within the removal period, his challenge to his current immigration
detention is thus premature. Petitioner’s petition is therefore denied.33
III. CONCLUSION
For the reasons set forth above, the Petition will be DENIED. An appropriate
Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
33 Because petitioner is now detained pursuant to § 1231(a), any challenge to his previous
detention under § 1226(c) is effectively moot as he is no longer detained under that statute
and his detention cannot revert to § 1226(c) unless and until he is granted relief – in the form
of a judicially ordered stay of removal at the very least – by the Court of Appeals. Ufele v.
Holder, 473 F. App’x 144, 146 (3d Cir. 2012); Liang v. Lowe, No. 1:CV-17-1735, slip op. at
7 (M.D. Pa. Aug. 31, 2018) (Rep. & Recom.), adopted by, No. 1:CV-17-1735 (M.D. Pa.
Sept. 28, 2018) (holding that “a bond hearing at this stage of detention would be contrary to
the detention provisions of § 1231.”).