Jose A. Brito v. United States of America
ORDER denying 3 Motion for Order to Show Cause; denying 10 Motion for Special Hearing re: 3 EMERGENCY MOTION for Order to Show Cause TO REOPEN AND STAY REMOVAL., 10 EMERGENCY MOTION for Special Hearing re: 9 Letter . MOTION to Stay DEPORTATION. ; denying 10 Motion to Stay re: 3 EMERGENCY MOTION for Order to Show Cause TO REOPEN AND STAY REMOVAL., 10 EMERGENCY MOTION for Special Hearing re: 9 Letter . MOT ION to Stay DEPORTATION. Accordingly, Britos motion to re-open his Section 2255 petition and to stay the deportation proceedings will be denied. The Clerk of Court is directed to terminate the motions (21 Civ. 7572, Dkt. Nos. 3, 10), and to close the pending case Brito v. United States, No. 21 Civ. 7572 (PGG). SO ORDERED.. (Signed by Judge Paul G. Gardephe on 8/1/2022) (ks)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
-againstJOSE A. BRITO (a/k/a “Ronald Fermin
20 Cr. 63 (PGG)
JOSE A. BRITO,
21 Civ. 7572 (PGG)
UNITED STATES OF AMERICA,
PAUL G. GARDEPHE, U.S.D.J.:
On October 30, 2020, Jose Brito pleaded guilty before Magistrate Judge Ona T.
Wang to unlawfully entering the United States after having been convicted of an aggravated
felony and deported, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). (Plea Tr. (20 Cr. 63, Dkt.
No. 40)) On January 7, 2021 this Court accepted Brito’s plea (20 Cr. 63, Dkt. No. 46), and on
January 13, 2021, the Court sentenced Brito to 24 months’ imprisonment (20 Cr. 63, Dkt. No.
49). On January 20, 2021, Brito filed a notice of appeal. (20 Cr. 63, Dkt. No. 51)
On August 31, 2021, Brito filed a petition pursuant to 28 U.S.C. § 2255. (20 Cr.
63, Dkt. No. 59) 1 On September 16, 2021, this Court denied Brito’s Section 2255 petition
Brito’s Section 2255 petition was terminated due to a filing error and re-filed in 20 Cr. 63 and
21 Civ. 7572 on September 9 and 10, 2021, respectively. (20 Cr. 63, Dkt. No. 60; 21 Civ. 7572,
Dkt. No. 1)
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without prejudice, finding that his petition was premature in light of Brito’s pending direct
appeal. (Dkt. No. 2) 2 On April 4, 2022, the Second Circuit dismissed Brito’s appeal as moot,
noting that Brito’s appeal challenged the substantive reasonableness of his sentence, but that he
had completed his prison term on September 7, 2021. (20 Cr. 63, Dkt. No. 62)
Pending before this Court is Brito’s motion to re-open his Section 2255 petition
and to stay his deportation from the United States. (July 23, 2022 Emergency Motion to ReOpen and Stay Removal (Dkt. No. 3); July 31, 2022 Emergency Motion to Stay Removal or
Deportation (Dkt. No. 10))
On July 27, 2022, the Government filed an opposition, arguing that this Court
lacks jurisdiction to grant Brito relief under Section 2255, since Brito has served his sentence for
his criminal conviction, and is thus no longer “in custody” for purposes of Section 2255. 3 (Govt.
Br. (Dkt. No. 6) at 15-17) According to the Government, after Brito was released from the
custody of the Federal Bureau of Prisons on September 7, 2021, he was placed in the custody of
the Department of Homeland Security (“DHS”). (Klaybor Decl. (Dkt. No. 7) ¶ 46) On February
16, 2022, an immigration judge ordered Brito removed to the Dominican Republic. (Id. ¶ 56)
Unless otherwise specified, all docket citations in the remainder of this order are to the docket
in Brito v. United States, No. 21 Civ. 7572 (PGG).
The Government also argues that, “[i]f the Court were to construe Petitioner’s Motion as filed
under [28 U.S.C.] § 2241,” the Court lacks jurisdiction to grant Brito relief because (1) Brito is
confined outside this District, in an immigration detention center in the Western District of New
York; and (2) “district courts are jurisdictionally-barred from considering challenges to removalrelated findings or orders,” pursuant to 8 U.S.C. § 1252. (Govt. Br. (Dkt. No. 6) at 17-22) The
Government also notes that Brito has two Section 2241 petitions pending in the Western District
of New York. (Id. at 13-14; see Brito v. Mayorkas, No. 21 Civ. 1077 (JLS) (W.D.N.Y) (filed on
September 8, 2021 in the Southern District of New York and transferred to the Western District
of New York on October 1, 2021); Fermin-Reynoso v. Warden, No. 22 Civ. 379 (LJV)
(W.D.N.Y) (filed on May 19, 2022)) Brito has not asked this Court to construe his petition as
filed under Section 2241 (see Pet. Reply Br. (Dkt. No. 11)), and – in light of the jurisdictional
issues identified by the Government and Brito’s pending petitions in the Western District of New
York – this Court will not do so.
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Brito filed an appeal with the Board of Immigration of Appeals (“BIA”), but on July 11, 2022,
the BIA dismissed his appeal. (Id. ¶¶ 57-58) Brito is scheduled to be deported to the Dominican
Republic on August 2, 2022. (Id. ¶ 60) He is currently detained at the Buffalo Detention
Facility in Batavia, New York. (Id. ¶ 61)
Section 2255 provides that:
A prisoner in custody under sentence of a court established by Act of Congress claiming
the right to be released upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). A petitioner “must satisfy the jurisdictional ‘in custody’ requirement” at
the time of filing the petition. See United States v. Rutigliano, 887 F.3d 98, 104 (2d Cir. 2018)
(quotation marks and citations omitted). “Once ‘the sentence imposed for a conviction has
completely expired,’ . . . ‘the collateral consequences of that conviction are not themselves
sufficient to render an individual “in custody” for the purposes of a habeas attack upon it.’”
Okhio v. United States, No. 12-CR-179(EK), 2022 WL 595257, at *1 (E.D.N.Y. Feb. 28, 2022)
(quoting Ogunwomoju v. United States, 512 F.3d 69, 74 (2d Cir. 2008)). Indeed, “a petitioner in
immigration detention or under a final order of removal as a result of a criminal conviction is not
considered ‘in custody’ for the purposes of Section 2255.” Eisa v. Immigr. & Customs Enf’t,
No. 08 CIV 6204 (FM), 2008 WL 4223618, at *4 (S.D.N.Y. Sept. 11, 2008).
Here, Brito has completed the 24-month sentence imposed by this Court and was
released to DHS custody on September 7, 2021, pending his removal from the United States.
(See Klaybor (Dkt. No. 7) ¶¶ 46-61) The sentenced imposed by this Court has thus been fully
discharged. Notwithstanding Brito’s argument to the contrary (see Pet. Reply Br. (Dkt. No. 11)
at 4), “collateral consequences of [Brito’s] conviction – including deportation proceedings – do
Case 1:21-cv-07572-PGG Document 12 Filed 08/01/22 Page 4 of 4
not render an individual in custody for . . . purposes [of Section 2255].” Okhio, 2022 WL
595257 at *1.
Because Brito is not “in custody” for purposes of Section 2255, this Court lacks
jurisdiction to entertain his Section 2255 petition. Accordingly, Brito’s motion to re-open his
Section 2255 petition and to stay the deportation proceedings will be denied. The Clerk of Court
is directed to terminate the motions (21 Civ. 7572, Dkt. Nos. 3, 10), and to close the pending
case – Brito v. United States, No. 21 Civ. 7572 (PGG).
Dated: New York, New York
August 1, 2022
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