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


12-29-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4562




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"Barenboy v. Atty Gen USA" (2005). 2005 Decisions. Paper 32.
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BPS-57                                                         NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT

                                       NO. 05-4562
                                      _____________

                               ALEXANDER BARENBOY,
                                          Appellant

                                               v.

               ATTORNEY GENERAL OF THE UNITED STATES;
           SECRETARY OF DEPARTMENT OF HOMELAND SECURITY;
                 WARDEN, Hudson County Correctional Facility
                         ______________________

                     On Appeal From the United States District Court
                              For the District of New Jersey
                                (D.C. Civil No. 05-02956)
                        District Judge: Honorable Joel A. Pisano
                               ______________________

                         Submitted For Possible Summary Action
                        Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                    November 23, 2005

              Before:    RENDELL, AMBRO and BECKER, Circuit Judges.

                                (Filed December 29, 2005)
                                       ____________

                                OPINION OF THE COURT
                                     ____________

PER CURIAM

       Alexander Barenboy appeals from an order of the United States District Court for

the District of New Jersey, dismissing his petition for a writ of habeas corpus as second or
successive. Barenboy has also filed a motion for release on bail pending appeal. For the

reasons that follow, we will affirm the District Court’s judgment and will deny the motion

for release.

       Barenboy was born in the Moldavian Soviet Socialist Republic, which no longer

exists, having become the independent Republic of Moldova in August 1991. CIA World

Factbook, http://www.cia.gov/cia/publications/factbook/geos/md.html. Barenboy entered

the United States as a refugee in 1992. About ten years later, he was convicted of a drug

crime and was placed in removal proceedings. An Immigration Judge (IJ) denied

Barenboy’s application for asylum, withholding of removal and deferral of removal under

the United Nations Convention Against Torture, and ordered him removed to Moldova.

On August 18, 2004, the Board of Immigration Appeals (BIA) affirmed.

       In December 2004, the Moldovan Embassy informed the U.S. Immigration and

Customs Enforcement (ICE) that Barenboy was not a citizen of Moldova, but that he

could apply for citizenship, based on his birth in Moldavia. The Consul indicated that he

would only forward an application for citizenship upon written request from Barenboy

himself. ICE prepared a letter for Barenboy’s signature, requesting the application.

Barenboy signed the letter, but after his signature added the words “sing [sic] under the

protest.” The deportation officer believed that the Moldovan Embassy would not accept

such a letter, and did not send it. The deportation officer informed Barenboy of his

obligation to cooperate in applying for travel documents.



                                             2
       In September 2004, Barenboy filed a petition for a writ of habeas corpus, arguing

that there was no likelihood of his removal in the foreseeable future and that his detention

was therefore improper under Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (holding that

presumptively reasonable period to detain an alien beyond the removal period is six

months). The District Court rejected his argument, finding that Barenboy had “caused the

continued detention,” and that under the Immigration and Nationality Act, the

Government was authorized to extend the removal period where the “alien fails or refuses

to make timely application in good faith for travel or other documents necessary to the

alien’s departure . . . .” District Court order, March 30, 2005 (quoting 8 U.S.C.

§ 1231(a)(1)(C)).1

       On June 8, 2005, Barenboy filed a second habeas petition in the District Court. He

again argued that his removal in the foreseeable future was unlikely, but provided no

substantiation for the assertion, aside from his attorney’s statements. The District Court

issued an order to show cause why the petition should not be dismissed as a second or

successive petition. After receiving responses and holding a hearing, the District Court

dismissed the petition with prejudice, finding that Barenboy’s issues had been raised in

his prior petition, and that he raised no new issues. Barenboy timely appealed.

       We exercise plenary review of the District Court’s dismissal of the petition as




  1
    The District Court noted that the petition was also premature, as it was filed only
forty-one days after the removal order became final.

                                             3
second or successive. Zayas v. INS, 311 F.3d 247, 252 (3d Cir. 2002). We find no legal

error here, as “a successive petition, which raises grounds identical to those raised and

rejected on the merits, need not be entertained.” See e.g., Kuhlmann v. Wilson, 477 U.S.

436, 454 (1986) (successive petition should be granted only in rare cases). Barenboy

raised no new issues in his second petition; but in response to the District Court’s order to

show cause why the petition should not be dismissed, he argued that circumstances had

changed; e.g., he had cooperated in submitting a citizenship application, and his

presumptive removal period had expired. We agree with the District Court that these

circumstances were not legally significant.

       First, in its order denying Barenboy’s first habeas petition, the District Court

indicated that Barenboy’s removal period was being extended due to his failure to

cooperate in obtaining necessary documents. In the second proceeding, the District Court

affirmed this finding and clarified that the removal period did not begin until Barenboy

began to cooperate with ICE officials; i.e., in April 2005. Thus, the second habeas

petition, filed about six weeks thereafter, was still premature. Second, we agree with the

District Court that Barenboy had failed to produce any competent evidence on the

question of whether he was unlikely to be removed in the foreseeable future.2


  2
    Once the six-month period has passed, the burden is on the alien to “provide[] good
reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future . . . .” Zadvydas v. Davis, 533 U.S. 678, 701 (U.S. 2001). Only then
does the burden shift to the Government, which “must respond with evidence sufficient to
rebut that showing.” Id.

                                              4
       We note that the six-month presumptive period has recently passed, but that does

not mean that Barenboy is automatically entitled to be released. “To the contrary, an alien

may be held in confinement until it has been determined that there is no significant

likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701.

If Barenboy believes he is unlikely to be removed in the near future, he may request the

Department of Homeland Security to review his situation, as outlined in the

Government’s response in opposition to his release on bail. See 8 C.F.R. § 241.13.

Further, Barenboy may file a habeas petition in the future if he can show that his removal

is not reasonably foreseeable.3

       For the foregoing reasons, we will affirm the judgment of the District Court. The

motion for release is denied as moot.




  3
     Barenboy has attached to his Memorandum of Law Opposing Summary Action a
letter dated October 21, 2005 from the Embassy of Moldova, indicating that it cannot
make a final decision on his citizenship application until it receives a proper identification
document, an original criminal history record translated to Moldovan or Russian, and a
money order for 10 U.S. dollars. As the Embassy is still willing to consider his
citizenship application, he cannot show at this time that he is unlikely to be removed in
the reasonably foreseeable future.

                                              5
