Molina v. Mayorkas

Filing 6

ORDER OF DISMISSAL: The petition for a writ of habeas corpus, filed under 28 U.S.C. 2241, is denied without prejudice. Because the petition makes no substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. 2253. The Court certifies under 28 U.S.C. 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to enter judgment in this case. (Signed by Judge Laura Taylor Swain on 8/1/2022) (sac)

Case 1:22-cv-05579-LTS Document 6 Filed 08/01/22 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JUAN J. MOLINA,
Petitioner,
22-CV-5579 (LTS)

-againstALEJANDRO MAYORKAS,
SECRETARY OF DEPARTMENT OF
HOMELAND SECURITY,

ORDER OF DISMISSAL

Respondent.
LAURA TAYLOR SWAIN, Chief United States District Judge:
Petitioner, who was incarcerated in Fishkill Correctional Facility at the time he filed this
action, brings this pro se petition for a writ of habeas corpus, under 28 U.S.C. § 2241. Petitioner
originally filed this action in the United States District Court for the Eastern District of New
York. See Molina v. Mayorkas, No. 22-CV-2037 (E.D.N.Y. June 30, 2022). By text order dated
June 30, 2022, Judge Rachel P. Kovner of the Eastern District dismissed Petitioner’s challenge to
his order of removal for lack of subject matter jurisdiction, and transferred Petitioner’s challenge
to his immigration confinement, which arises under Section 2241, to this court. 1 (See Text Order,
June 30, 2022.)
By order dated July 11, 2022, the Court granted Petitioner’s request to proceed in forma
pauperis. For the reasons set forth below, the Court denies without prejudice Petitioner’s petition
for a writ of habeas corpus under Section 2241. 2
1

By text order dated June 5, 2022, Judge Kovner directed Petitioner to show cause why
the court should not dismiss his challenge to his removal order for lack of jurisdiction and
transfer his Section 2241 claims to this District. (See Text Order, June 5, 2022.) Petitioner filed a
letter response on June 23, 2022. (See ECF 3.)
2

Because the Eastern District has already dismissed Petitioner’s challenge to his removal
order for lack of subject matter jurisdiction, this Court addresses only his challenge to his
confinement under Section 2241.

Case 1:22-cv-05579-LTS Document 6 Filed 08/01/22 Page 2 of 5

STANDARD OF REVIEW
The Court may entertain a petition for a writ of habeas corpus from a person in custody
challenging the legality of his detention on the ground that “[h]e is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The Court has the
authority to review the petition and “award the writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless it appears from the application that the
applicant or person detained is not entitled [to such relief].” 28 U.S.C. § 2243. The Court is
obliged, however, to construe pro se pleadings liberally and interpret them “to raise the strongest
arguments they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(internal quotation marks and citations omitted); see Green v. United States, 260 F.3d 78, 83 (2d
Cir. 2001). Nevertheless, a pro se litigant is not exempt “from compliance with relevant rules of
procedural and substantive law.” Triestman, 470 F.3d at 477 (quoting Traguth v. Zuck, 710 F.2d
90, 95 (2d Cir. 1983)).
BACKGROUND
The following facts are drawn from the petition. Petitioner Juan J. Molina, who is a
citizen of the Dominican Republic, was ordered removed from the United States on July 5, 2012,
following his March 25, 2009, conviction in the County Court, Albany County, for criminal
possession of controlled substance in the first degree, criminal sale of a controlled substance in
the first degree, conspiracy in the second degree, and criminal possession of a controlled
substance in the third degree. (ECF 1, at 2.) Petitioner was found guilty after a jury trial and was
sentenced to concurrent and consecutive sentences totaling 39 years’ imprisonment. The New
York State Supreme Court, Appellate Division, Third Department, concluded that the
consecutive sentence was required to run concurrently with other sentences and affirmed the
conviction and sentence as modified, and the New York State Court of Appeals denied leave to
2

Case 1:22-cv-05579-LTS Document 6 Filed 08/01/22 Page 3 of 5

appeal. See People v. Molina, 73 A.D.3d 1292 (3d Dep’t 2010), leave denied, 15 N.Y.3d 807
(2010). Records maintained by the U.S. Department of Justice show that Petitioner appealed the
removal order to the Board of Immigration Appeals, and the appeal was dismissed on October
12, 2012. 3
The petition states that on March 23, 2022, Petitioner was granted conditional parole
from criminal custody. (ECF 1, at 3.) Records maintained by the New York State Department of
Corrections and Community Supervision (DOCCS) show that, on July 11, 2022, Petitioner was
actually released on parole into the custody of United States immigration. 4 According to U.S.
Immigration and Customs Enforcement’s Online Detainee Locator System, Petitioner is
currently detained in the Buffalo Federal Detention Facility in Buffalo, New York. 5
Petitioner invokes the Due Process Clause of the Fifth Amendment. He asserts that he
may not be held indefinitely pending removal and that “once the six months period for removal
has expired . . . cancellation of removal should be granted in its entirety.” (Id. at 3 (emphasis in
original).)
Petitioner seeks “a writ of habeas corpus to be brought to the end that he may be
discharged from his unconstitutional immigration confinement” and “a writ of habeas corpus
cancellation of removal and/or de novo review of removal proceedings.” (Id. at 9.)

3

427-261.

261.

See https://acis.eoir.justice.gov/en/caseInformation, Juan Jose Molina, A-Number: 041-

4

See https://nysdoccslookup.doccs.ny.gov/, Juan J. Molina, DIN: 09A1706.

5

See https://locator.ice.gov/odls/#/index, Juan Jose Molina-Castillo, A-Number: 041-4273

Case 1:22-cv-05579-LTS Document 6 Filed 08/01/22 Page 4 of 5

DISCUSSION
Under federal immigration law, 8 U.S.C. § 1231(a) governs the detention, release, and
removal of individuals who have been “ordered removed” from the United States. When the
United States Attorney General takes a noncitizen into custody, the Attorney General “shall
remove . . . [the noncitizen] from the United States within a period of 90 days.” 8 U.S.C.
§ 1231(a)(1)(A). If the noncitizen is in state custody, the 90-day period does not commence until
“the date [he] is released from detention or confinement.” Id. § 1231(a)(1)(B)(iii). The Attorney
General “is under no obligation to execute a deportation order” while the noncitizen is still
serving a state sentence. Duamutef v. I.N.S., 386 F.3d 172, 179 (2d Cir. 2004). Indeed, “under
§ 1231(a)(4)(A), ‘the Attorney General may not remove [a noncitizen] who is sentenced to
imprisonment until the [noncitizen] is released from imprisonment.’” Id. (quoting 8 U.S.C.
§ 1231(a)(4)(A)). Once the noncitizen is released from state custody, the statute provides the
Government “shall” detain the noncitizen during the 90-day statutory removal period. 8 U.S.C.
§ 1231(a)(2).
Here, Petitioner fails to show that his immigration custody is unconstitutional because
Section 1231’s 90-day removal period has not expired; in fact, it has only recently been
triggered. The 90-day period began when Petitioner was released from state custody on July 11,
2022. The Government therefore has 90 days from July 11, 2022, or until on or about October
10, 2022, to effectuate removal. Under the statute, the Government is required to detain
Petitioner during this 90-day period. See id. (directing that the Government “shall” detain the
noncitizen during the statutory removal period). Because Petitioner’s 90-day removal period has
not expired, and because the Government is statutorily required to detain him during this period,

4

Case 1:22-cv-05579-LTS Document 6 Filed 08/01/22 Page 5 of 5

he cannot show that he is being held “indefinitely” in violation of the constitution. The Court
therefore denies without prejudice Petitioner’s challenge to his immigration custody. 6
CONCLUSION
The petition for a writ of habeas corpus, filed under 28 U.S.C. § 2241, is denied without
prejudice.
Because the petition makes no substantial showing of a denial of a constitutional right, a
certificate of appealability will not issue. See 28 U.S.C. § 2253.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to enter judgment in this case.
SO ORDERED.
Dated:

August 1, 2022
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

6

After the conclusion of the initial 90-day removal period, the United States government
“may” detain certain categories of individuals subject to removal. 8 U.S.C. § 1231(a)(6). The
Supreme Court has recently held that, under the statute, the government is not required “to offer
detained noncitizens bond hearings after six months of detention.” Johnson v. Arteaga-Martinez,
142 S. Ct. 1827, 1830 (2022). In Arteaga-Martinez, the Supreme Court did not decide whether a
noncitizen detained for more than six months may be entitled to a bond hearing based on
constitutional due process concerns. Arteaga-Martinez, 142 S. Ct. at 1834-35. Because
Petitioner’s 90-day removal period has not expired, the Court need not address this issue here.
5