                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2007

Hendricks v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4248




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"Hendricks v. Atty Gen USA" (2007). 2007 Decisions. Paper 1474.
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CLD-152                                                       NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                        NO. 06-4248
                                     ________________

                              JOHN HENDRICKS, Appellant

                                            v.

              JANET RENO, UNITED STATES ATTORNEY GENERAL;
           ISRAEL RIVERA, WASHINGTON CORRECTIONAL FACILITY

                     _______________________________________

                     On Appeal From the United States District Court
                              For the District of New Jersey
                               (D.C. Civ. No. 06-cv-02871)
                      District Judge: Honorable William J. Martini
                     _______________________________________

                       Submitted For Possible Summary Action
                     Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                    March 8, 2007

            Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES

                                  (Filed: March 14, 2007)
                                _______________________

                                       OPINION
                                _______________________

PER CURIAM

       John Hendricks appeals from the District Court’s order denying his petition for a

writ of habeas corpus filed under 28 U.S.C. § 2241. For the following reasons, we will

affirm the District Court’s order.
       Hendricks is an alien subject to a final order of removal from the United States.

He challenged the final order of removal by filing a petition for review with the United

States Court of Appeals for the Second Circuit. Hendricks also challenged his continued

detention while awaiting removal from the United States. By order entered March 15,

2006, the Second Circuit stayed Hendricks’ removal pending judicial review. The

Second Circuit also transferred Hendricks’ challenge to his continued detention to the

United States District Court for the District of New Jersey to be treated as a habeas corpus

petition under § 2241. The District Court concluded that Hendricks’ continued detention

is lawful and denied his habeas corpus petition. Hendricks filed a timely appeal to this

Court. Meanwhile, Hendricks withdrew his petition for review of the final order of

removal; the Second Circuit closed those proceedings on February 22, 2007.

       We agree with the District Court that Hendricks’ continued detention is

permissible under the applicable statutory scheme. Generally, the government must

effectuate the removal of an alien within ninety days of the final order of removal. See 8

U.S.C. § 1231(a)(1)(A); Zadvydas v. Davis, 533 U.S. 678, 682 (2001). During the

removal period, the government detains the alien. See § 1231(a)(2); Zadvydas, 533 U.S.

at 683. Aliens who are removable may be detained beyond the ninety-day period only as

long as “reasonably necessary” to effectuate their removal from the United States.1


   1
    Based on the record before us, we are unable to determine whether Hendricks is
removable or inadmissible. We need not determine his precise status, however, because
the governing principles apply to removable aliens and inadmissible aliens alike. See
Clark v. Martinez, 543 U.S. 371, 378 (2005).

                                             2
Zadvydas, 533 U.S. at 689, 699. The presumptive period reasonably necessary to

effectuate removal is six months. Id. at 701. After the six-month period expires, the alien

may be eligible for conditional release if he can demonstrate that there is “no significant

likelihood of removal in the reasonably foreseeable future.” Id.

       Here, Hendricks asserts that he has been in detention continuously since February

2006, a period of time which obviously exceeds six months. Under the statutory scheme,

however, “[i]f the removal order is judicially reviewed and if a court orders a stay of

removal,” the removal period does not begin until “the date of the court’s final order.” 8

U.S.C. § 1231(a)(1)(B)(ii); see 8 C.F.R. § 241.4(g)(1)(i)(B); Wang v. Ashcroft, 320 F.3d

130, 147 (2d Cir. 2003). As described previously, the Second Circuit ordered a stay of

removal on March 15, 2006, but did not enter a final order in Hendricks’ petition for

review until February 22, 2007. In other words, Hendricks’ removal period has just

begun; his continued detention during the removal period is permissible under the statute.

       For these reasons, we will affirm the District Court’s order denying Hendricks’

habeas corpus petition. In light of our disposition, Hendricks’ request for appointment of

counsel is denied.




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