09-2643 (consolidated) NEVILLE SYLVESTER LESLIE v. Attorney General of the United States

CLD-296 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 09-2460 & 09-2643
(consolidated)
______ _____
NEVILLE SYLVESTER LESLIE,
Appellant
v.
ATTORNEY GENERAL OF THE UNITED STATES; MARY SABOL, Warden York
County Prison; THOMAS DECKER, District Director for the U.S. Department of
Homeland Security Immigration and Custom Enforcement
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-09-00762)
District Judge: Honorable Richard P. Conaboy
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and IOP. 10.6
August 27, 2009
Before: RENDELL, HARDIMAN and ROTH, Circuit Judges
(filed: February 4, 2010 )
_________
OPINION
_________

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PER CURIAM
Appellant Neville Sylvester Leslie, an immigration detainee at York County Prison
in Pennsylvania, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in
the United States District Court for the Middle District of Pennsylvania challenging his
detention by the United States Department of Homeland Security (DHS). Leslie also
raised several issues related to the conditions of his confinement. The District Court
dismissed the petition. For the following reasons, we will summarily affirm.
Leslie, a native and citizen of Jamaica, has had lawful permanent resident status
since 1989. In 1998, following a guilty plea, Leslie was convicted in the United States
District Court for the Eastern District of Virginia of conspiracy to possess and distribute
50 grams or more of crack cocaine in violation of 21 U.S.C. § 846. The Court sentenced
Leslie to a term of imprisonment of 168 months. The sentence was later reduced pursuant
to a Sentencing Guidelines amendment. See generally United States v. Mateo, 560 F.3d
152, 154 (3d Cir. 2009).
Upon completion of his sentence, DHS took Leslie into custody and charged him
as being removable for having been convicted of an aggravated felony and a controlled
substance offense. 8 U.S.C. §§ 1227(a)(2)(A)(iii) & (a)(2)(B)(i). On April 16, 2008,
after a brief hearing at York County Prison, an Immigration Judge (IJ) ordered that Leslie
be removed from the United States. The Board of Immigration Appeals (BIA) dismissed
Leslie’s appeal. Leslie then filed a petition for review in this Court. Leslie v. Att’y Gen.,

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The District Court had habeas jurisdiction over Leslie’s claim that his detention was1
prolonged unlawfully. See, e.g., Nnadika v. Att’y Gen., 484 F.3d 626, 632 (3d Cir.
2007).
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C.A. No. 08-3180. On August 14, 2008, a motions panel of this Court granted his request
for a stay of removal and appointed him counsel. The petition for review is currently
pending before this Court.
On April 22, 2009, nine months after the BIA issued the final order of removal,
Leslie filed an emergency writ of habeas corpus pursuant to 28 U.S.C. § 2241. In the
petition, Leslie argued that his continued detention violated the Constitution. Leslie also
asserted Eighth Amendment claims related to the conditions of his confinement at York
County Prison. The District Court dismissed the petition. Leslie sent the District Court a
letter requesting an extension of time to file a motion for reconsideration and for
appointment of counsel. The District Court denied the request for counsel, and Leslie
filed separate timely notices of appeal challenging the dismissal of his petition and the
District Court’s refusal to appoint counsel. Previously, the Clerk consolidated the two
resulting appeals. Leslie has also filed two motions in this Court requesting appointment
of counsel.
We have jurisdiction over these appeals pursuant to 28 U.S.C. §§ 1291 and
2253(a). In reviewing the denial of Leslie’s habeas corpus petition, we exercise plenary1
review over the District Court’s legal conclusions and apply a clearly erroneous standard
to its factual findings. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d

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The statute provides: “During the removal period, the Attorney General shall detain2
the alien. Under no circumstances during the removal period shall the Attorney General
release an alien who has been found . . . deportable under section 1227(a)(2) . . . .” 8
U.S.C. § 1231(a)(2).
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Cir. 2002). We review the District Court’s denial of counsel for an abuse of discretion.
See Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993).
The District Court analyzed Leslie’s detention under 8 U.S.C. § 1226(c) which
instructs the Attorney General to take into custody and detain during ongoing removal
proceedings any alien who, like Leslie, is removable by reason of having committed an
aggravated felony. In Demore v. Kim, 583 U.S. 510 (2003), the Supreme Court held that
mandatory detention of lawful permanent residents during removal proceedings pursuant
to § 1226(c) does not violate the protections guaranteed under the Constitution, even
when there has been no finding that an alien is unlikely to appear for his or her removal
proceedings. See id. at 527-28. The District Court relied on Demore in refusing to grant
habeas relief. Leslie, however, filed the petition after the BIA entered his final order of
removal. See 8 C.F.R. § 1241.1(a) (“An order of removal made by the immigration judge
at the conclusion of proceedings . . . shall become final . . . [u]pon dismissal of an appeal
by the Board of Immigration Appeals”). At that point, DHS was not detaining Leslie
pursuant to § 1226(c) but rather under 8 U.S.C. § 1231(a), which authorizes post-final
order detentions and requires the Attorney General to detain him. As discussed below,2
any error by the District Court in this regard is harmless, inasmuch as Leslie’s

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Section 1231(a)(6) provides: “An alien ordered removed who is . . . removable under3
section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title . . . may be detained beyond
the removal period . . . .” 8 U.S.C. § 1231(a)(6).
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constitutional challenge to his detention is premature.
Under § 1231(a), the Attorney General has 90 days to remove Leslie from the
United States after his final order of removal. 8 U.S.C. § 1231(a)(1)(A). The Supreme
Court interpreted § 1231(a)(6) to authorize post-removal order detention of an alien
convicted of an aggravated felony to a period reasonably necessary to bring about the
alien’s removal, generally no more than six months. Zadvydas v. Davis, 533 U.S. 678,3
700-01 (2001). After six months, “once the alien provides good reason to believe that
there is no significant likelihood of removal in the reasonably forseeable future, the
Government must respond with evidence to rebut that showing.” Id. at 701. “This 6-
month presumption, of course, does not mean that every alien not removed must be
released after six months.” Id.
The removal period under section 1231 begins on the latest of (1) the date the
order of removal becomes administratively final; (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). Leslie filed a petition for
review and a motions panel of this Court granted him a stay of removal on August 14,
2008. Leslie v. Att’y Gen., C.A. No. 08-3180. Leslie’s case is currently pending before

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this Court. Inasmuch as the “period reasonably necessary to secure removal” has not yet
begun under § 1231(a)(1)(B), Leslie’s argument that his continued detention violates the
Constitution is premature. Zadvydas, 533 U.S. at 659. Therefore, the District Court, did
not err in dismissing the petition for habeas corpus.
To the extent that Leslie attempts to challenge the conditions of his confinement,
we agree with the District Court that this habeas corpus petition was not the proper
vehicle to raise his claims. See Doe v. Pa. Bd. of Prob. and Parole, 513 F.3d 95, 99 n.3
(3d Cir. 2008). Further, the District Court did not err in denying Leslie’s request for
appointment of counsel. See Tabron, 6 F.3d at 155 (before appointing counsel district
court must consider the merits of the plaintiff’s claim). Likewise, Leslie’s motions for
appointment of counsel in this Court are also denied.
Accordingly, because this appeal presents us with no substantial question, we will
summarily affirm the District Court’s order. See 3rd Cir. L.A.R. 27.4 and I.O.P. 10.6.

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