                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-4-2006

Torres v. Wagner
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1512




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Recommended Citation
"Torres v. Wagner" (2006). 2006 Decisions. Paper 358.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/358


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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-1512


                                 RAMON M. TORRES,
                                             Appellant

                                            v.

                   GEORGE WAGNER, Warden OR/INS/ICE/DHS;
                  IMMIGRATION & NATURALIZATION SERVICE


                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                              (D.C. Civ. No. 05-CV-05275)
                    District Judge: Honorable Mary A. McLaughlin


                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 21, 2006

          BEFORE: BARRY, CHAGARES and COWEN, CIRCUIT JUDGES

                                (Filed: October 4, 2006 )


                                        OPINION




PER CURIAM

      Ramon M. Torres appeals from an order of the United States District Court for the

Eastern District of Pennsylvania, denying his petition for a writ of habeas corpus. We
will affirm the Court’s order.

       Ramon Torres is a native and citizen of the Dominican Republic. He filed a

§ 2241 petition in the District Court challenging both his order of removal and his

continued detention. The Magistrate Judge properly determined that pursuant to 8 U.S.C.

§ 1252(a)(5), the District Court was without jurisdiction to consider any challenge to

Torres’ removal order.1 As to his detention claim, the Magistrate Judge found that his

continued detention was proper. Pursuant to 8 U.S.C. § 1231(a)(1)(A), the Government

has 90 days to remove an alien. The removal period does not begin until, inter alia, the

date of a reviewing court’s final order if that court had ordered a stay of removal.

Further, pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001), the Court has held that

detention up to six months is presumptively reasonable. After six months, the alien is

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

likelihood of removal in the reasonably foreseeable future.” Id. at 701.

       Torres’ removal period first began on May 19, 2005, when an Immigration Judge

affirmed his final order of removal. However, the Second Circuit issued a stay of

removal on Torres’ request on June 20, 2005. The stay was not lifted until November 2,

2005.2 Thus, Torres’ removal period recommenced on that date. At the time the


   1
    The Magistrate Judge also noted that Torres had challenged his removal order in the
Second Circuit by filing two petitions for review.
   2
    Indeed, we take judicial notice that on November 28, 2005, Torres filed another
motion for stay of removal with the Second Circuit. See C.A. No. 05-3582 (2d Cir.). The
Second Circuit denied Torres’ petition in that case, and declared his pending stay motion

                                              2
Magistrate Judge issued his Report and Recommendation, the 90 day period had not yet

passed. The Magistrate Judge also noted that Torres had not shown that his removal in

the future would be delayed; when he was deported in 2002, it took less than four months

to deport him once he was in custody.

         We find no error in the District Court’s holding that Torres’ continued detention

was permissible. We note that Torres has still not proffered any evidence to show that his

removal in the reasonably foreseeable future is unlikely.3 Therefore, we will affirm the

District Court’s judgment.4




as moot on June 6, 2006. The Government notes that because the Second Circuit treats a
request for stay of removal as a temporary stay, it has an agreement with that Court
whereby it treats a stay request as if a stay is in effect. Thus, the removal period did not
begin again until June 6, 2006.
   3
      Torres argues in his brief that the Government is basing his confinement on incorrect
information reflected on a custody status review form. However, the statute requires the
Government to hold an alien with a final removal order in custody during the removal
period. 8 U.S.C. § 1231(a)(2) (“During the removal period, the Attorney General shall
detain the alien.”). Thus, the only relevant information pertaining to his detention at this
time is whether he is an alien with a final order of removal (he does not dispute that he
is), and whether his removal is likely in the foreseeable future.
   4
       Torres’ motion for oral argument is denied.

                                              3
