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Precedential or Non-Precedential: Non-Precedential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CPS-68 NOT PRECEDENTIAL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
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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;
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(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.
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Accordingly, we will summarily affirm the District Court’s orders.
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