affirming denial of habeas petition where court found delay from date of administratively final deportation order was less than ninety days
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- affirming denial of habeas petition where court found delay from date of administratively final deportation order was less than ninety days
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The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NATNAEL T. DAGNE, Civil No. 3:23-cv-1531
Petitioner . (Judge Mariani)
v. .
WARDEN CRAIG LOWE, .
Respondent .
MEMORANDUM
Petitioner Natnael Dagne (“Dagne’”) is an immigration detainee in the custody of the
United States Department of Homeland Security, Immigration and Customs Enforcement
(“ICE”). He is currently being detained at the Pike County Correctional Facility, in Lords
Valley, Pennsylvania. Dagne commenced this action by filing a petition for a writ of habeas
corpus under 28 U.S.C. § 2241. (Doc. 1). He seeks an individualized bond hearing. (Id. at
p. 7). For the reasons set forth below, the Court will deny habeas relief.
l. Factual Background
Dagne is a citizen and native of Ethiopia. (See Doc. 9-1, p. 5). He was admitted to
the United States as an asylee under Section 208(c) of the Immigration and Nationality Act
(“INA”) on September 28, 2002, at Newark, New Jersey. (/d. at p. 7). Dagne became a
lawful permanent resident of the United States on March 26, 2007. (Id).
On October 8, 2021, Dagne pled guilty to conspiracy to distribute fentanyl and
eutylone in violation of 21 U.S.C. § 846, in the United States District Court for the Eastern
District of Virginia, Alexandria Division. (/d. at pp. 15-25). The plea agreement included a
section wherein Dagne acknowledged he was aware of potential immigration consequences
related to his plea agreement. (/d. at p. 22). On February 25, 2022, Dagne was sentenced
to thirty-three months of imprisonment and three years of supervised release. (/d. at pp. 9-
14).
Dagne was taken into ICE custody on October 21, 2022. (Id. at pp. 46-51). He was
charged as removable under INA Section 237(a)(2)(B)(i), for being convicted of a drug
offense; Section 237(a)(2)(A)(iii), for being convicted of an aggravated felony as defined by
Section 101(a)(43)(B) of the Act, an offense relating to the illicit trafficking in a controlled
substance; and Section 237(a)(2)(A)(iii), for being convicted of an aggravated felony as
defined by Section 101(a)(43)(U) of the Act, relating to an attempt or conspiracy to commit
an offense described in Section 101(a)(43) of the Act. (/d. at p. 51). Dagne challenged his
removal, but his claim was denied by an immigration judge on April 5, 2023, and he was
ordered removed to Ethiopia. (/d. at pp. 160-163). Dagne appealed this decision to the
Board of Immigration Appeals (“BIA”). (/d. at p. 163). On August 11, 2023, the BIA affirmed
the decision of the immigration judge. (/d. at pp. 187-190). Dagne did not file a petition for
review with the United States Court of Appeals for the Third Circuit.
Dagne is being detained pursuant to 8 U.S.C. § 1231(a) and has been detained by
ICE for approximately sixty-seven days. In the habeas petition, Dagne argues that his
mandatory detention has become unreasonable and thus unconstitutional.
ll. Legal Standard
Under 28 U.S.C. § 2241(c), a prisoner or detainee may receive habeas relief only if
he “is in custody in violation of the Constitution or laws or treaties of the United States.” See
28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). Because Dagne filed
the instant petition while he was detained within the jurisdiction of this Court, is still currently
detained by ICE, and asserts that his continued detention violates due process, this Court
has jurisdiction over his Section 2241 petition. See Zadvydas v. Davis, 533 U.S. 678, 699
(2001); Spencer v. Kemna, 523 U.S. 1, 7 (1998).
lll. Discussion
Dagne contends that his continued immigration detention violates due process.
(Doc. 1). The Court must first examine the statutory basis for Dagne’s detention. Although
Dagne challenges his detention under 8 U.S.C. § 1226(c), once a final order of removal is
issued, an alien is instead subject to mandatory detention under 8 U.S.C. § 1231(a). Under
§ 1231(a), the Government is required to detain an alien subject to a final order of removal
for ninety days after the issuance of the final removal order. See 8 U.S.C. § 1231(a)(1)(A),
(a)(2); see also 8 U.S.C. § 1231(a)(1)(B). Detention during this ninety-day removal period is
mandatory. See Zadvydas, 533 U.S. at 683. Thus, once an alien is subject to a final order
of removal, his detention is governed by § 1231 unless he seeks review of his removal order
by filing a petition for review with the Court of Appeals and is granted a stay of removal.
See 8 U.S.C. § 1231 (a)(1)(B)(ii). Here, Dagne received an administrative final order of
removal on August 11, 2023 when the Board dismissed his appeal, and Dagne entered his
ninety-day removal period on that date as he has not filed a petition for review nor sought a
stay from the Third Circuit Court of Appeals. See 8 U.S.C. § 1231(a)(1)(A), (B); 8 U.S.C. §
1252(b)(1); 8 C.F.R. § 1241.1(a); 8 C.F.R. § 1241.1(c).
Because Dagne is subject to a final order of removal and has not sought review or a
stay from the Court of Appeals, his detention is controlled by the Supreme Court's decision
in Zadvydas. The Court in Zadvydas observed that § 1231(a) requires the Government to
detain all aliens subject to administratively final orders of removal during the statutory
ninety-day removal period. Zadvydas, 533 U.S. at 683. Further, the Zadvydas Court held
that the statute permits the Government to detain aliens beyond that ninety-day period if
their detention remains “reasonably necessary” to effectuate their removal. Id. at 689, 699.
The Court therefore held that an alien may be detained under § 1231(a) for a period of up to
six months following his final order of removal during which his continued detention must be
presumed to be reasonable and therefore not violative of due process. /d. at 701. Thus,
where a removable alien has been detained under § 1231 for less than six months following
a final order of removal, his challenge must be denied. Id.
Dagne received a final order of removal on August 11, 2023, and entered his ninety-
day removal period at that time. Thus far, Dagne has been detained for sixty-seven days
out of the ninety-days in his removal period. As the ninety-day removal period has not yet
expired, Dagne is well within the six-month presumptively reasonable period established by
Zadvydas. As such, this Court is required to presume that Dagne’s current detention is
reasonable, and his habeas petition must be denied. See Hendricks v. Reno, 221 F. App’x
131 (3d Cir. 2007) (affirming denial of habeas petition where court found delay from date of
administratively final deportation order was less than ninety days).
IV. Conclusion
The Court will deny Dagne’s petition (Doc. 1) for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 without prejudice to his right to file a new petition in the appropriate court
should his detention become unreasonable.
A separate Order shall issue.
Cy
Robert D>Mariani
United States District Judge
Dated: October 18. 2023