Rodney v. Mukasey

340 F. App'x 761
CourtCourt of Appeals for the Third Circuit
DecidedAugust 7, 2009
DocketNo. 09-1660
StatusPublished

This text of 340 F. App'x 761 (Rodney v. Mukasey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rodney v. Mukasey, 340 F. App'x 761 (3d Cir. 2009).

Opinion

OPINION

PER CURIAM.

Appellant Dexter Rodney, an immigration detainee at the Pike County Correctional Facility in Lords Valley, Pennsylvania, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in United States District Court for the Middle District of Pennsylvania, challenging his detention by the United States Department of Homeland Security. Rodney, a native and citizen of Guyana, entered the United States on February 27, 1996 as a lawful permanent resident. On February 11, 2004, following a jury trial, he was convicted in United States District Court for the Southern District of New York of bank fraud and theft of government property. On March 21, 2005, the United States Court of Appeals for the Second Circuit affirmed the conviction. Rodney’s sentence expired on July 12, 2007.

In a Notice to Appear dated July 12, 2007, Rodney was charged with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who had been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(M)(i).1 The Notice to Appear was based on the 2004 bank fraud conviction. That same day, DHS took Rodney into custody. On November 6, 2007, an Immigration Judge found him removable as charged, and Rodney timely appealed to the Board of Immigration Appeals. On March 6, 2008, finding that Rodney had established a claim of ineffective assistance of counsel, the Board vacated the IJ’s decision and remanded for further proceedings. On April 11, 2008, the IJ concluded that the government failed to establish the charge of removability by clear and convincing evidence in that it failed to establish a loss in excess of $10,000. The IJ dismissed the aggravated felony ground of removal, and terminated removal proceedings. The government appealed. On July 28, 2008, the Board sustained the government’s appeal, found that it had established the charge of re-movability by clear and convincing evidence, and remanded the matter back to the IJ for entry of a new decision. On October 28, 2008, the IJ, in keeping with the Board’s decision, ordered Rodney removed from the United States to Guyana.

Rodney, through counsel, timely appealed the IJ’s decision to the Board of Immigration Appeals. Meanwhile, on July 24, 2008, just before the Board sustained the [763]*763government’s appeal, Rodney pursued the instant pro se petition for writ of habeas corpus in federal court. Following the submission of a response by the government to the habeas corpus petition, the District Court, in an order entered on February 20, 2009, 2009 WL 427171, dismissed it. Rodney contended in his habe-as corpus petition that he was being detained at the Pike County prison pursuant to 8 U.S.C. § 1226(c) without an individualized determination of his status in violation of his Constitutional rights. (Petition, at 1-2.) Rodney cited the Supreme Court’s decisions in Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), and Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), in his petition to support his contention that his twelve-month detention exceeded Constitutional bounds.

The District Court determined that Rodney’s detention was authorized by 8 U.S.C. § 1226(c)(1)(B), which instructs the Attorney General to take into custody and detain during ongoing removal proceedings any alien who, like Rodney, is removable by reason of having committed an aggravated felony.2 Furthermore, the Supreme Court held in Demore, 538 U.S. 510, 123 S.Ct. 1708 that mandatory pre-final order of removal detention of lawful permanent residents pursuant to 8 U.S.C. § 1226(c) does not violate the protections guaranteed under the Constitution, even where there has been no finding that an alien is unlikely to appear for his or her removal proceeding. See id. at 527-28, 123 S.Ct. 1708. The District Court also concluded that any claim for release under 8 U.S.C. § 1231(a)(6) and Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), was premature, because section 1231(a) governs post-removal order detention and, as yet, there was no administratively final order of removal in Rodney’s ease.

Rodney appeals. On April 24, 2009, he filed a motion for appointment of counsel on appeal and an application to proceed in forma pawperis. Our Clerk granted him leave to appeal in forma pauperis and advised him that his appeal was subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in writing, and, on July 13, 2009, Rodney submitted argument in support of his appeal.

We will dismiss the appeal as moot. In argument in support of his appeal, Rodney contends that his continued pre-final order of removal detention pursuant to 8 U.S.C. § 1226(c) without a hearing violates due process. He notes the holding of Demore, 538 U.S. 510, 123 S.Ct. 1708, and that it is not in his favor, but he urges us to consider reading Demore narrowly because he has been in DHS’s custody since July 12, 2007, and this lengthy detention exceeds “the brief period necessary for removal proceedings” found acceptable in Demore. (Argument in Support of Appeal, at 2.) Pointing to a concurrence in Demore, 538 U.S. at 532, 123 S.Ct. 1708 (Kennedy, J., concurring), Rodney argues that an individualized determination is warranted if the continued pre-final order of removal detention becomes unreasonable, which it has in his case. What Rodney neglects to tell us, however, is that his pre-final order of removal detention has ended.

On March 12, 2009, shortly after the District Court rendered its decision on his habeas corpus petition, the Board of Immi[764]*764gration Appeals dismissed his appeal. The Board concluded that, by clear and convincing evidence, the government established that Rodney’s bank fraud conviction involved a loss to Fleet Bank of in excess of $10,000, and that there was a clear tie between the fraud conviction and the amount of the loss. The Board’s decision to reject Rodney’s appeal has resulted in a final order of removal. 8 C.F.R. § 1241.1(a) (“An order of removal made by the immigration judge at the conclusion of proceedings ... shall become final ...

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Related

Allen v. Wright
468 U.S. 737 (Supreme Court, 1984)
Lewis v. Continental Bank Corp.
494 U.S. 472 (Supreme Court, 1990)
Stone v. Immigration & Naturalization Service
514 U.S. 386 (Supreme Court, 1995)
Demore v. Kim
538 U.S. 510 (Supreme Court, 2003)
Zadvydas v. Davis
533 U.S. 678 (Supreme Court, 2001)

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Bluebook (online)
340 F. App'x 761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodney-v-mukasey-ca3-2009.