Ciupangel v. Doll

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FLOREA CIUPANGEL, No. 4:19-CV-00208

Petitioner, (Judge Brann)

v.

WARDEN CLAIR DOLL,

Respondent.

MEMORANDUM OPINION

OCTOBER 28, 2020

Presently before the Court is the petition for a writ of habeas corpus of

Petitioner Florea Ciupangel 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 For the reasons

set forth below, this Court will dismiss the petition without prejudice.

I. BACKGROUND

Petitioner is a citizen and native of Romania who was apprehended by the

United States Custom and Boarder Protection attempting to enter the United States

at or near Brownsville, Texas on September 30, 2016.3 At the time Petitioner was

1 Doc. 1.

2 Docs. 5, 14.

taken into custody and charged as inadmissible because he had attempted to enter

the United States without proper entry documentation.4 He sought asylum status and

was paroled into the country pending immigration proceedings to be held in the

Philadelphia, Pennsylvania immigration court.5

On January 30, 2018, Petitioner was apprehended by the police in Delaware

and charged with various crimes.6 He was found guilty of conspiracy in the second

degree and sentenced to 364 days’ imprisonment.7 Later that year, on August 1,

2018, Petitioner was detained by ICE, which, upon confirming Petitioner’s

conviction, determined that he should be detained in ICE’s custody.8 ICE lodged

further removal charges against Petitioner due to Petitioner’s criminal conviction.9

On December 28, 2018, an immigration judge determined that the court

lacked jurisdiction to consider bond because of Petitioner’s status as an arriving

alien.10 Shortly thereafter, on February 6, 2019, Petitioner filed the instant petition

for writ of habeas corpus seeking to be released on bond.11 Respondent filed an

answer, arguing, inter alia, that due to Petitioner’s status as an arriving alien, he was

not entitled to a bond hearing so long as Petitioner’s claims for asylum and removal

4 Id. at 2.

5 Id.

6 Id.

7 Id.

8 Id. at 3.

9 Id.

10 Id.

11 Doc. 1.

were pending.12 Respondent also advised as to Petitioner’s upcoming asylum

hearing.

On May 1, 2019, a hearing was held on Petitioner’s claims of asylum.13 The

immigration judge denied Petitioner’s application for asylum and ordered him

removed.14 Petitioner appealed that decision to the Board of Immigration Appeals,

which on October 7, 2019 remanded the case to the immigration judge for a more

thorough assessment of Petitioner’s asylum claims.15 This Court then directed the

parties to provide a status updates regarding Petitioner’s immigration proceedings.16

Since then, the immigration judge again denied Petitioner’s asylum claims

and ordered him removed; the appeal of that decision was dismissed by the Board

of Immigration Appeals; and the United States Court of Appeals for the Third Circuit

ultimately denied a stay of removal on September 22, 2020.17

Respondent has now filed a notice of change in detention status and

suggestion of mootness, as Petitioner’s status has changed from a pre-final order of

removal to a post-final order of removal.18

12 Doc. 5.

13 Doc. 14 at 1-2.

14 Id. at 2.

15 Id.

16 Doc. 7.

17 Doc. 14 at 2. The Third Circuit initially entered a temporary stay of removal while it

considered Petitioner’s claims. See id.

18 Doc. 14.

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.”19 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.”20 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.21

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. At the

time he filed his petition, Petitioner’s immigration status was pre-final order of

removal because he had not yet been ordered removed. Now that the immigration

judge has ordered Petitioner removed and any stay of removal has been denied by

the Third Circuit, Petitioner’s immigration status is post-final order of removal.

19 28 U.S.C. § 2241(c)(3).

20 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989).

21 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).

“Generally speaking, 8 U.S.C. § 1226 governs pre-removal order detention of aliens

while 8 U.S.C. § 1231 governs post-removal order detention of aliens.”22

In this case, when Petitioner filed his § 2241 petition, his detention was

governed by § 1225(b) because he was classified as an arriving alien and his

immigration claims had not yet been adjudicated. After the immigration judge

ordered Petitioner removed and the Third Circuit denied Petitioner’s motion to stay

removal on September 22, 2020, however, Petitioner’s status shifted to post-final

order of removal; his detention is now governed by § 1231.23 To the extent Petitioner

seeks a bond hearing to challenge his detention pursuant to § 1225(b), his § 2241

petition must be denied as moot.24

Given Petitioner’s pro se status and continued detention, however, the Court

will consider whether he is entitled to a bond hearing to review his continued post-

order detention under § 1231. Section 1231(a)(1)(A) provides that “[e]xcept 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.”25

During this ninety day period, “the Attorney General shall detain the alien. Under

22 Samba v. Lowe, No. 3:18-cv-662, 2020 WL 599839, at *2 (M.D. Pa. Feb. 7, 2020).

23 See Samba, 2020 WL 599839, at *2; Labarriere v. Doll, No. 4:19-cv-309, 2019 WL

6875624, at *2 (M.D. Pa. Dec. 17, 2019).

24 See Ufele v. Holder, 473 F. App’x 144, 146 (3d Cir. 2012) (holding that habeas challenge to

pre-final order of detention was rendered moot when individual shifted to post-final order

detention status); Saini v. Lowe, No. 4:18-cv-1546, 2019 WL 1247529, at *2 (M.D. Pa. Feb.

22, 2019), report and recommendation adopted, 2019 WL 1239873 (M.D. Pa. Feb. 22, 2019).

25 8 U.S.C. § 1231(a)(1)(A).

no circumstance during the removal period shall the Attorney General release an

alien who has been found . . . deportable under section 1227(a)(2).”26 After the

ninety day period has expired, the alien may either be held in continued detention or

be released under supervision.27

In Zadvydas v. Davis,28 the Supreme Court concluded that § 1231 “limits an

alien’s post-removal-period detention to a period reasonably necessary to bring

about the alien’s removal from the United States. It does not permit indefinite

detention.”29 Thus, “[o]nce removal is no longer reasonably foreseeable, continued

detention is no longer authorized by statute.”30 The Supreme Court noted that a

period of six months is a “presumptively reasonable period of detention.”31

Here, the Third Circuit denied Petitioner’s motion for a stay of removal and

lifted the temporary stay on September 22, 2020, at which point the ninety day

removal period commenced.32 Petitioner is thus still within the ninety day period

where his detention is mandatory. His period of mandatory detention will expire on

26 Id., § 1231(a)(2).

27 Id., § 1231(a)(3), (6).

28 533 U.S. 678 (2001).

29 See id. at 699.

30 See id.

31 Id. at 701. See also Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 226 (3d

Cir. 2018) (concluding that the Due Process Clause of the Fifth Amendment prohibits

prolonged detention under § 1231 without a bond hearing and adopting a six (6)-month rule

that an alien detained under § 1231 “is generally entitled to a bond hearing after six months

(i.e., 180 days) of custody”).

32 See Omollo v. Warden, York Cty. Prison, No. 3:17-cv-1039, 2018 WL 2292533, at *2 (M.D.

Pa. May 18, 2018); Gekara v. Lowe, No. 3:17-cv-1693, 2019 WL 837599, at *2 (M.D. Pa.

Feb. 12, 2018).

or about December 22, 2020, and his presumptively reasonable period of detention

without a hearing expires ninety days thereafter. “A petition filed before the

expiration date of the presumptively reasonable six months of detention is properly

dismissed as premature.”33 Thus, Petitioner’s § 2241 petition must be dismissed

because his challenge to his detention under § 1231 is premature at this time.34

IV. CONCLUSION

For the reasons set forth above, the Petition will be dismissed. An appropriate

Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

33 Gekara v. Lowe, No. 3:17-cv-1693, 2018 WL 837599, at *2 (M.D. Pa. Feb. 12, 2018).

34 See Samba, 2020 WL 599839, at *3.