Juan Osmin Castellanos A93 289 308 v. ERIC H. HOLDER JR. , Attorney General of the United States

* Amended Pursuant to Fed. R. App. Proc. 43(c)
** The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4665
JUAN OSMIN CASTELLANOS
#A93 289 308
v.
ERIC H. HOLDER JR. *,
Attorney General of the United States;
JANET NAPOLITANO * ,
Secretary of the Department of Homeland Security;
SCOTT WEBER,
U.S. I.C.E. Field Office Director for the District of New Jersey;
EDMOND C. CICCHI,
Warden of the Middlesex County Adult Correctional Facility, New Brunswick, New
Jersey
Juan Osmin Castellanos, Appellant
On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 2-08-cv-04474
(Honorable Susan D. Wigenton)
Argued May 11, 2009
Before: AMBRO, ROTH, and ALARCÓN, ** Circuit Judges.

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(Filed: July 20, 2009)
Michael V. Gilberti, Esq. [ARGUED]
Epstein & Gilberti
21 East Front Street, Suite 210
Red Bank, New Jersey 07701
Counsel for Appellant
Peter G. O’Malley [ARGUED]
Office of United States Attorney
970 Broad Street, Room 700
Newark, New Jersey 07102
Counsel for Appellees
OPINION OF THE COURT
ALARCÓN, Circuit Judge.
Juan Osmin Castellanos appeals from the District Court’s decision denying his
application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Based upon
our review of the record, we conclude that the District Court did not err in finding that the
application for a writ of habeas corpus is premature, as there is no final order of removal.
Accordingly, we will affirm the District Court’s order.
I
Castellanos, a native of El Salvador, entered the United States in 1987 without
inspection. On August 29, 1995, he pleaded guilty to a charge of rape in the third degree
in a New York state court. He served 20 days in jail and one year on probation. On April

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1 Castellanos’s application for asylum is not part of the record on appeal. 1
3
5, 2000, an Immigration Judge (“IJ”) in New York, New York ordered that Castellanos be
removed from the United States (the “April 5, 2000 removal order”). On March 2, 2005,
Castellanos was taken into custody by agents of the Department of Homeland Security
(“DHS”). On March 19, 2005, he left the United States and returned to El Salvador.
II
On August 12, 2005, Castellanos was apprehended at the border in Texas while
trying to re-enter the United States. He was convicted of illegal entry into the United
States in violation of 8 U.S.C. §1326(a) in the District Court for the Western District of
Texas. He was sentenced to 37 months in prison and 3 years of non-reporting supervised
release. The April 5, 2000 removal order was reinstated on August 12, 2005 by the DHS.
On April 16, 2008, Castellanos completed his prison term for illegal re-entry into the
United States. He was immediately taken into custody in El Paso, Texas by United States
Immigration and Customs Enforcement (“ICE”). He was moved to a detention facility in
New Jersey.
III
A
In October 2006, Castellanos filed an application for asylum.1 Upon being taken
into custody on April 16, 2008, his asylum case was referred to the Immigration Court in
New York which issued the April 5, 2000 removal order.

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2 Section 2241 provides
Writs of habeas corpus may be granted by the Supreme Court,
any justice thereof, the district courts and any circuit judge
4
The record on appeal reflects that Castellanos’s application for asylum was
transferred from New York to the Immigration Court in Newark, New Jersey. That court
has jurisdiction over the New Jersey detention center where Castellanos is currently in
custody.
B
On June 2, 2008, Officer James Hutchinson conducted a hearing in Newark, New
Jersey, to determine whether Castellanos had a reasonable fear of torture if he were to be
returned to El Salvador. In his application for asylum, Castellanos claimed to have
witnessed the assassination of a mayor in June 2005, while he was living in El Salvador.
He contended that the assassins subsequently tried to kill him. On June 4, 2008, the DHS
issued Officer Hutchinson’s report. He concluded that Castellanos failed to show a
reasonable fear of persecution or torture if returned to El Salvador. Castellanos requested
review of Officer Hutchinson’s determination by an IJ. On June 18, 2008, a hearing was
held before an IJ in Newark, New Jersey. The IJ ordered that Castellanos be removed on
June 23, 2008 (the “June 23, 2008 removal order”).
C
On June 26, 2008, Castellanos filed an application for a writ of habeas corpus
pursuant to 28 U.S.C. § 22412 in the Eastern District of New York. In his application,

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within their respective jurisdictions.
28 U.S.C. § 2241(a).
5
Castellanos claimed that: (1) he was denied a reasonable fear hearing in August 2005
when he re-entered the country illegally; (2) his application for asylum was unreasonably
denied; (3) his continued detention is unconstitutional; (4) the court must stay his
removal; and, (5) the Eastern District of New York should review the June 23, 2008
removal order.
On July 1, 2008, the Eastern District of New York ordered the United States
Attorney’s Office (the “USAO”), to file a response to the application for a writ of habeas
corpus. It also denied Castellanos’s request to stay his deportation pending resolution of
the habeas proceedings. On July 7, 2008, Castellanos requested that the Eastern District
of New York stay his removal which was scheduled to occur within two days. On July 8,
2008, the USAO filed a letter with the Eastern District of New York which provided that
Castellanos would not be removed while his request for a stay of removal was pending.
D
The Eastern District of New York conducted telephone conferences with the
parties on July 7 and July 8, 2008. During these conferences, Castellanos argued that
the Court should transfer the portion of the petition
challenging the Immigration Order to the Second Circuit –
even though the Immigration Order was issued in Newark,
New Jersey – because the Execution of the Final Order took
place within the Second Circuit, and because the petitioner

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had been domiciled and owned property within the Second
Circuit.
On July 9, 2008, the Eastern District of New York issued the following order:
[T]he Court has determined that it lacks jurisdiction to review
[Castellanos’s] removal order or determine whether petitioner
is entitled to a stay of his removal order. Thus, as agreed
upon by both parties on the record during the Court’s
telephone conference on July 8, 2008, the Court transfers that
portion of the petition to the Court of Appeals for the Second
Circuit.
The Eastern District of New York did not rule on the question whether Castellanos’s
detention should continue.
Castellanos filed a petition for review of his removal order on July 10, 2008 in the
United States Court of Appeals for the Second Circuit. On July 14, 2008, he filed a
motion for a stay of his deportation pending a hearing of his habeas corpus claims in the
Second Circuit. On July, 22, 2008, the USAO file a letter in response, stating it did not
oppose the motion for a stay of removal.
The USAO filed a response to the application for a writ of habeas corpus in the
Eastern District of New York on July 15, 2008. It argued that the Eastern District of New
York lacked jurisdiction over the custody claims remaining in that matter. Castellanos
filed a reply on July 17, 2008 in the Eastern District of New York.
On August 12, 2008, Castellanos filed a motion seeking his release on bail in the
Eastern District of New York. On August 16, 2008, he filed a motion to expedite the
hearing on his bail motion.

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On September 8, 2008, the Eastern District of New York issued an order holding
that “this Court lacks jurisdiction over petitioner’s bail and remaining claims. The clerk
of the Court is therefore directed to transfer the petition to the United States District Court
for the District of New Jersey for further proceedings.” The Eastern District of New York
explained its ruling as follows:
Since the warden at the [Hudson County Jail] is the custodian
of plaintiff and is the only proper respondent, jurisdiction over
petitioner’s bail application and his remaining claims lies only
in the United States District Court for the District of New
Jersey, which is the district of petitioner’s confinement. . . .
Accordingly, it is appropriate to transfer petitioner’s bail
application and remaining claims, i.e. those claims not
previously transferred to the United States Court of Appeals
for the Second Circuit, to the United States District Court for
the District of New Jersey.
On September 8, 2008, the Second Circuit issued the following order:
1. The above-captioned petition for review is hereby
dismissed with prejudice and without costs or fees to any
party, pursuant to Rule 42(b) of the Federal Rules of
Appellate Procedure;
2. The June 23, 2008 order of the immigration judge (“IJ”)
finding that Petitioner . . . does not possess a “reasonable
fear” of persecution or torture if returned to El Salvador
[the June 2008 Removal Order] is hereby vacated. This
matter is hereby remanded to the IJ for further proceedings
pursuant to 8 C.F.R. §§ 208.31 and 241.8(e).
3. On remand, Castellanos shall be permitted the opportunity
to file an application for deferral of removal under the
United Nations Convention Against Torture and Other
Cruel, Inhumane or Degrading Treatment or Punishment
(“CAT”), 1465 U.N.T.S. 85, adopted Dec. 10, 1984, S.
Treaty Doc. No. 100-20 (1988).
4. Nothing in this Stipulation and Order of Dismissal and
Remand limits the authority of the IJ or the Board of

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Immigration Appeals to grant or deny CAT relief sought
by on any appropriate ground or for any appropriate
reason.
5. The execution of Castellanos’s August 23, 2005 [sic]
reinstated removal order shall be stayed pending a final
administrative decision on his CAT application as
provided in 8 C.F.R. §§ 208.31 and 241.8(e).
A hearing on Castellanos’s Convention Against Torture claim was held on January
14, 2009 in Newark, New Jersey before an IJ. The claim was denied. Castellanos
appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”). The BIA
dismissed Castellanos’s appeal on June 4, 2009.
E
The custody and bail issues raised by Castellanos were set for oral argument
before the New Jersey District Court on November 5, 2008. At that hearing, Castellanos
contended that
[The Zadvydas v. Davis case] stands for the proposition that
the proper way to bring this kind of application is through a
habeas petition. [533 U.S. 678 (2001)]. And second, it says
that once you get past the six-month period, the Court has to
review the reasonableness of the projected [period before
removal will occur].
He argued that he should be released on bail because he was not a danger to the
community or a flight risk. On November 12, 2008, the New Jersey District Court held
that the application for habeas corpus relief was prematurely filed due to the fact that on
September 8, 2008, the Second Circuit vacated the June 23, 2008 removal order, issued
by an IJ in Newark, New Jersey, and stayed the April 5, 2000 removal order, issued by an

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IJ in New York, New York and reinstated by the DHS on August 12, 2005. The New
Jersey District Court denied the application without prejudice.
Castellanos filed a timely notice of appeal in this Court on November 25, 2008.
The New Jersey District Court had jurisdiction under 28 U.S.C. § 2241 over Castellanos’s
application for a writ of habeas corpus. This Court has jurisdiction pursuant to 28 U.S.C.
§ 1291 because the appeal is from a final order denying Castellanos’s application for
habeas corpus relief.
II
A
In his appeal to this Court, Castellanos contends that the New Jersey District Court
erred in “holding that Mr. Castellanos’[s] removal Order was not in force because the
government never reinstated the original removal order . . . and [] in failing to release Mr.
Castellanos on bail and denying his petition for a writ of habeas corpus after his
incarceration for more than 180 days.” This Court exercises plenary review over the
district court’s legal conclusions when an application for habeas corpus relief has been
denied without an evidentiary hearing. Bakhtriger v. Elwood, 360 F.3d 414, 417 (3d Cir.
2002).
B
In Zadvydas, the United States Supreme Court reviewed the legality of the
detention of two aliens for more than six months after a final order of removal had been
issued against them. The record showed that the United States Government was unable to

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3 As such, though Castellanos’ detention was classified under § 1231(a)(6), that
section does not directly apply because it requires a final order of removal. Section
1226(a), which authorizes detention “pending a decision on whether an alien is to be
removed from the United States,” is the correct provision here.
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find countries that would accept them. 533 U.S. at 684-686. Castellanos contends that he
is entitled to release on bail pending the outcome of the review of his removal order
because he has been detained for more than six months and his removal is unforeseeable,
that is, indefinite. We disagree. The Supreme Court held in Zadvydas that an alien’s
detention for more than six months after the issuance of a final order of removal is
presumptively unreasonable. 533 U.S. at 701.
Castellanos’s circumstances are clearly distinguishable from those presented to the
Supreme Court in Zadvydas. In Zadvydas, the Immigration Courts had issued final orders
of removal. Id. at 684-686. In this matter, the April 5, 2000 removal order was stayed by
the Second Circuit. Accordingly, a final order of removal has not been issued.3
In addition, Castellanos’ detention period is not “indefinite” for three reasons.
(1) Castellanos “is not stuck in a ‘removeable-but-unremoveable limbo,’ as the
petitioners in Zadvydas were.” Prieto-Romero v. Clark, 534 F.3d 1053,
1063 (9th Cir. 2008). To the contrary, the Government is ready and willing
to remove Castellanos but must wait for a final order of removal to do so
legally.

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(2) While Castellanos’ detention lacks a certain end date, the end is still
reasonably foreseeable – the completion of removal proceedings. See
Zadvydas, 533 U.S. at 699.
(3) Castellanos himself has requested the continuance of his removal hearing.
See Demore v. Kim, 538 U.S. 510, 530–31 (2003).
For the foregoing reasons, we affirm the District Court’s order.

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