Opinion

Brown v. Rivera

Court
District Court, N.D. Alabama
Filed
Jan 15, 2020
Cited by
0 cases
Authority
More cited than 16.5%

The opinion

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

RICARDO HUGH BROWN, )

)

Petitioner, )

)

v. ) Case No.: 4:19-cv-00511-RDP-HNJ

)

DAVID RIVERA, et al., )

)

Respondents. )

AMENDED MEMORANDUM OPINION

On December 9, 2019, the Magistrate Judge entered a report recommending

this action be dismissed without prejudice. (Doc. 12). The Magistrate Judge further

recommended that Brown’s motion for evidentiary hearing be denied. (Id.).

On January 6, 2020, the court dismissed this action without prejudice. (Docs.

14, 15). The court noted improvidently that no objections had been received by the

court. (Doc. 14 at 1). However, the court received Petitioner Brown’s objections on

January 3, 2020.1 (Doc. 13). Accordingly, the court WITHDRAWS the

Memorandum Opinion and Order entered January 6, 2020. (Docs. 14, 15).

In his objections, Brown claims a New York criminal court is considering

vacating his convictions for the criminal sale of marijuana, convictions which the

1 Because Petitioner Brown is in custody, the court will deem the objections filed the date he

delivered them to custodial officials for mailing which appears to be December 22, 2019. (Doc.

13 at 3). See Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001); Adams v. United

States, 173 F.3d 1339, 1341 (11th Cir. 1999).

immigration authorities used to initiate Brown’s Notice to Appear in Immigration

Court and the subsequent order of removal. (Doc. 13 at 1). He further states that

some of his other drug offenses have been expunged and his convictions for petit

larceny, resisting arrest, obtaining transportation without paying, and driving with a

suspended license do not support deportation. (Id.).

Brown does not address the magistrate judge’s findings that his claims are

premature under 8 U.S.C. § 1231(a)(1)(A) because he has filed petitions for review

and motions for stay of removal in the Second Circuit, and thus, he has a petition for

review currently pending. See Brown v. Barr, No. 19-2980 (2d Cir.). In the Eleventh

Circuit, a petitioner’s appeal of his removal order, accompanied by, or without, a

stay of removal, “interrupts” the presumptively reasonable, six-month removal

period arising under § 1231(a)(1)(A). And that operates to postpone a petitioner’s

access to the relief accorded by Zadvydas v. Davis, 533 U.S. 678 (2001). See

Akinwale v. Ashcroft, 287 F.3d 1050, 1052 n.4 (11th Cir. 2002). At the time Brown

filed the present petition, immigration authorities had not detained him beyond the

presumptively reasonable six months, as that time period is construed by Akinwale,

and thus, his petition is due to be dismissed without prejudice as premature. Id. at

1052. Therefore, the court OVERRULES Brown’s objections.

Having carefully reviewed and considered de novo all the materials in the

court file, including the report and recommendation, and the objections thereto, the

court ADOPTS the magistrate judge’s report and ACCEPTS his recommendation.

Accordingly, the petition is due to be dismissed without prejudice. In addition,

Brown’s motion for evidentiary hearing is due to be denied.

A separate order will be entered.

DONE and ORDERED this January 15, 2020.

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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