                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-2005

Vasquez v. BICE
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4517




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Recommended Citation
"Vasquez v. BICE" (2005). 2005 Decisions. Paper 64.
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CPS-68                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                  NO. 05-4517
                               ________________

                                JOSE VASQUEZ,

                                    Appellant

                                        v.

  IMMIGRATION AND CUSTOMS ENFORCEMENT; INTERIM FIELD OFFICE
   DIRECTOR FOR DETENTION AND REMOVAL FOR THE PHILADELPHIA
                             DISTRICT
               ____________________________________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                         (M.D. Pa. Civ. No. 05-cv-00346)
                     District Judge: Honorable Malcolm Muir
                  _______________________________________


Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                               December 8, 2005

         BEFORE: BARRY, SMITH and NYGAARD, CIRCUIT JUDGES

                            (Filed December 21, 2005)

                           _______________________

                                   OPINION
                           _______________________
PER CURIAM

       Jose Vasquez, a native and citizen of the Dominican Republic, appeals an order of

the United States District Court for the Middle District of Pennsylvania denying his

petition for a writ of habeas corpus, and an order denying his motion for reconsideration.

Because this appeal does not raise a substantial question, we will summarily affirm the

District Court’s orders.

       Vasquez was admitted to the United States as an immigrant in 1984. In 2001, he

pled guilty in federal court to conspiracy to possess with intent to distribute cocaine. He

was sentenced to fifty-seven months in prison. In April 2004, the Immigration and

Naturalization Service issued a Notice to Appear charging Vasquez with being subject to

removal from the United States based upon his conviction of an aggravated felony, as

defined under the Immigration and Nationality Act, and his conviction of a violation of a

controlled substance law. In July 2004, the Bureau of Immigration and Customs

Enforcement took Vasquez into custody.

       An Immigration Judge (“IJ”) found Vasquez removable as charged, and in October

2004, denied his applications for asylum, withholding of removal and relief under the

Convention Against Torture. The Board of Immigration Appeals (“BIA”) affirmed the

IJ’s decision in March 2005. Vasquez, through counsel, filed a petition for a writ of

habeas corpus in the United States District Court for the Eastern District of Pennsylvania

challenging the IJ’s and the BIA’s decisions. The District Court stayed Vasquez’s

removal, and transferred the petition to this Court to be treated as a petition for review

                                              2
under the Real ID Act of 2005, Pub. L. 109-13. Vasquez’s petition is pending.

       Shortly before the BIA issued its decision, Vasquez filed a petition for a writ of

habeas corpus in the United States District Court for the Middle District of Pennsylvania

claiming that under Zadvydas v. Davis, 533 U.S. 678 (2001), his continued detention

violates his constitutional rights. The District Court held that Vasquez’s petition is

premature because he has yet to be detained beyond the six-month time period found

presumptively reasonable in Zadvydas. The District Court denied Vasquez’s subsequent

motion for reconsideration, and this appeal followed.

       Detention of an alien convicted of an aggravated felony is mandatory during the

removal proceedings. 8 U.S.C. § 1226(c). See also Demore v. Kim, 538 U.S. 510, 531

(2003) (upholding constitutionality of § 1226(c)). Once an alien is ordered removed, the

Attorney General shall remove him from the United States within ninety days (the

“removal period”). 8 U.S.C. § 1231(a)(1)(A). During the removal period, the Attorney

General shall detain the alien. Id. § 1231(a)(2). An alien convicted of an aggravated

felony may continue to be detained beyond the removal period if he has not yet been

removed. Id. § 1231(a)(6). If removal is no longer reasonably foreseeable, however,

continued detention is no longer authorized. Zadvydas, 533 U.S. at 699. The Supreme

Court has recognized a six-month period when detention is presumptively reasonable to

effectuate an alien’s removal. Id. at 701.

       In this case, Vasquez’s removal period has yet to begin. The removal period

begins on the latest of (1) the date the order of removal becomes administratively final;

                                              3
(2) if the removal order is judicially reviewed and if a court orders a stay of the alien’s

removal, the date of the court’s final order; and (3) if the alien is confined (except under

an immigration process), the date the alien is released from confinement. 8 U.S.C.

§ 1231(a)(1)(B). Section two applies here, as Vasquez’s removal order is in the process

of being judicially reviewed, and the District Court ordered a stay of his removal which

remains in effect. Vasquez’s removal period will begin when this Court decides his

petition for review. Thus, we agree with the District Court that Vasquez’s challenge to

his detention under Zadvydas is premature. However, we reach that conclusion not

because the presumptively reasonable six-month period to effectuate an alien’s removal

has yet to expire, but because the removal period has yet to begin.

       In opposing summary action, Vasquez argues that he is entitled to immediate

release because he is a national of the United States. Vasquez, however, is not a national.

Although he has applied for citizenship, he cannot complete the application process

because he is ineligible for citizenship as a result of his conviction of an aggravated

felony. See Salim v. Ashcroft, 350 F.3d 307, 310 (3d Cir. 2003) (holding that an alien

convicted of an aggravated felony who could not complete the application process is not a

national). The District Court also correctly rejected Vasquez’s claim that he is being

punished twice for the same offense in violation of his constitutional rights. See INS v.

Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (noting that a deportation proceeding is a

purely civil action to determine eligibility to remain in this country). Finally, the District

Court did not abuse its discretion in denying Vasquez’s motion for reconsideration.

                                              4
Accordingly, we will summarily affirm the District Court’s orders.




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