Gumbs v. Heron

Filing 9

DECISION AND ORDER granting pending petition for a writ of habeas corpus conditionally. Signed by Hon. Richard J. Arcara on 9/11/2009. (JMB)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

P E R R Y NATHANIEL GUMBS, A 035-185-583, P e t it io n e r , D E C IS IO N AND ORDER 0 9 -C V - 5 0 6 A v.

MARTIN HERON, R e s p o n d e n t.

IN T R O D U C T IO N P e titio n e r filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on May 28, 2009, challenging his continued detention pursuant to a final o rd e r of removal to St. Kitts-Nevis. Petitioner maintains that he has been told s in c e his detention began on October 7, 2007 that a travel document from the C o n s u la te of St. Kitts-Nevis is forthcoming. The Government responds that a tra ve l document indeed is forthcoming and that there is no reason to believe o th e rw is e at this time. Because of the length of petitioner's detention and b e c a u s e of the indefinite nature of the Government's timetable for issuance of a tra ve l document, the Court will grant the petition conditionally and issue a writ of h a b e a s corpus if petitioner's removal does not conclude within 60 days.

B AC K G R O U N D T h is case concerns petitioner's continued detention at the Buffalo Federal D e te n tio n Center in Batavia, New York. Petitioner is a native of St. Kitts-Nevis w h o immigrated to the United States on or about July 27, 1976 at age 12. In 1 9 8 5 , petitioner joined the Army Reserve and spent over seven years as a heavy w h e e l vehicle mechanic. In November 1992, a few months after his time in the A r m y Reserve ended, petitioner applied for naturalized citizenship. In 1996, petitioner was convicted in the United States District Court for the S o u th e rn District of New York of conspiracy to possess cocaine with intent to d is trib u te , in violation of 21 U.S.C. § 846. In or around April 1997, the G o ve rn m e n t commenced removal proceedings against petitioner. Petitioner was c h a rg e d with being subject to removal, both as an alien convicted of a controlled s u b s ta n c e offense pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), and as an aggravated fe lo n pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). On March 10, 1999, an im m ig ra tio n judge ordered petitioner removed to St. Kitts-Nevis. Petitioner a p p e a le d that decision to the Board of Immigration Appeals ("BIA"). In March 2 0 0 1 , the BIA remanded petitioner's case to the immigration court for further p r o c e e d in g s . In October 2004, petitioner was convicted in New York State Supreme C o u rt, Orange County, of second-degree criminal possession of a controlled s u b s ta n c e , in violation of New York Penal Law § 220.18. Petitioner was 2

s e n te n c e d to a term of imprisonment of eight years to life. Petitioner's state c o n vic tio n prompted the filing of additional deportation charges in May 2005. In J u ly 2005, an immigration judge ordered petitioner removed to St. Kitts-Nevis. Petitioner's appeal of this order to the BIA was dismissed in October 2005. O ve r the next several years, petitioner commenced numerous a d m in is tra tive or judicial proceedings to challenge either the Government's order o f removal or its May 2007 denial of his naturalization application. The G o v e rn m e n t's answer in opposition to the pending petition summarizes these p ro c e e d in g s in more detail. Meanwhile, petitioner was received into immigration custody on October 5, 2 0 0 7 , upon his release from the custody of the New York State Department of C o rre c tio n a l Services. Petitioner has been held at the Buffalo Federal Detention C e n te r continuously since. On February 8, 2008, the Government sent a p re s e n ta tio n packet to the Consulate of St. Kitts-Nevis in W a s h in g to n , D.C. to o b ta in a travel document for petitioner's removal. According to petitioner's im m ig ra tio n file, the Consulate of St. Kitts-Nevis stated as early as September 16, 2 0 0 8 that a travel document was pending. Petitioner's immigration file includes a re c o rd of multiple subsequent communications repeating the same statement. In o p p o s in g the pending petition, the Government asserts that it has removed aliens to St. Kitts-Nevis on a regular basis, that the Consulate of St. Kitts-Nevis g e n e ra lly "takes a number of months" to complete its investigation before issuing 3

a travel document, and that there has been no indication that a travel document w ill not be issued here. D IS C U S S I O N A s a preliminary matter, the Court notes that it lacks jurisdiction to review p e titio n e r's final order of removal in itself. See 8 U.S.C. § 1252(a)(5) ("[A] petition fo r review filed with an appropriate court of appeals in accordance with this s e c tio n shall be the sole and exclusive means for judicial review of an order of re m o va l entered or issued under any provision of this chapter . . . ."). Petitioner w a s ordered removed to St. Kitts-Nevis in July 2005. This final order of removal, s u b s e q u e n tly affirmed through multiple motions to reopen removal proceedings, re s ts on petitioner's two criminal convictions. Through his 1996 federal conviction fo r conspiracy to possess cocaine with intent to distribute, and his 2004 state c o n vic tio n for criminal possession of a controlled substance in the second d e g re e , the Government has determined that petitioner is removable under 8 U .S .C . §§ 1227(a)(2)(A)(iii) and 1227(a)(2)(B)(i). The Court's lack of jurisdiction m e a n s that it will not review the substance of this determination. Review of the p e n d in g petition thus will be limited to a review of petitioner's custody pending fin a l removal. P e titio n e r's detention so far has been governed by 8 U.S.C. § 1231. Under th a t statute, petitioner's 90-day removal period began on October 5, 2007, when h e was taken into immigration custody upon release from state custody. See 8 4

U .S .C . § 1231(a)(1)(B)(iii). Once the 90-day removal period ended, the G o v e rn m e n t had two options regarding petitioner's future status. Because p e titio n e r was ordered removed under 8 U.S.C. § 1227(a)(2), the Government h a d authority to detain him beyond the removal period. See 8 U.S.C. § 1231(a)(6) ("An alien ordered removed who is . . . removable under section 1 2 2 7 (a )(1 )(C ) [or] 1227(a)(2) . . . may be detained beyond the removal period a n d , if released, shall be subject to the terms of supervision in paragraph (3)."). Alternatively, the Government had authority to grant petitioner release under c o n d itio n s established by 8 U.S.C. § 1231(a)(3) and corresponding regulations. Here, the Government chose the former option and has detained petitioner c o n tin u o u s ly since October 5, 2007. In theory, petitioner's detention does not violate the plain language of the s ta tu te that authorized it. The plain language, however, does not end the Court's a n a lys is , because it theoretically authorizes indefinite detention. To avoid c o n s titu tio n a l invalidation, "we read an implicit limitation into the statute before us. In our view, the statute, read in light of the Constitution's demands, limits an a lie n 's post-removal-period detention to a period reasonably necessary to bring a b o u t that alien's removal from the United States. It does not permit indefinite d e ten tio n . " Zadvydas v. Davis, 533 U.S. 678, 689 (2001). Here, the Government h a s stated that the Consulate of St. Kitts-Nevis typically needs several months to c o m p le te the investigation needed to issue a travel document. When the time for 5

in ve s tig a tio n -- a p p a re n tly now at 19 months and counting from the date of d e live ry of the presentation packet--exceeded the Government's estimate, the G o ve rn m e n t should have realized the uncertainty of the timetable for petitioner's re m o va l. At that point, release under conditions of supervision would have been p ru d e n t until petitioner's ultimate removal could be seen on the horizon and thus c o u ld be considered reasonably foreseeable. Instead, the Government continued to detain petitioner on the implied basis that the longer the detention lasted, the m o re imminent the issuance of the travel document would become. In fact, the G o ve rn m e n t's most recent Decision to Continue Detention, dated June 17, 2009, s ta te s this logic somewhat explicitly, stating that "ICE expects that a travel d o c u m e n t will be issued for you and that your removal will occur in the reasonably fore s e e a b le future. Therefore, you are to remain in ICE custody at this time." (Dkt. No. 6-3 at 1.) In opposing the pending petition, the Government relies on th is logic even more explicitly. The Government argues now that petitioner's final re m o va l is reasonably foreseeable because "[w]hile no travel document for G u m b s 's removal to St. Kitts-Nevis has been received by DHS as of the present tim e , there has been no indication that a travel document will not be issued for St. K itts -N e vis ." (Dkt. No. 6-2 ¶ 42.) As a result, the Government essentially is a rg u in g that petitioner can remain detained indefinitely, so long as the Consulate o f St. Kitts-Nevis continues to promise that a travel document will issue at some p o in t. 6

T h e Government's argument for indefinite detention based on an indefinite tim e tab le for an eventual travel document is unacceptable under Zadvydas. The G o ve rn m e n t continues to use this argument to keep petitioner detained even th o u g h petitioner is no closer to removal now than he was in February 2008, w h e n the Government delivered its presentation packet. Considering that the in ve s tig a tio n in question has taken far longer than the Government estimated, th a t the communications from the Consulate of St. Kitts-Nevis have not changed in over a year, and that there is no way to know when the investigation will end, it h a s become apparent that Government simply has no idea whether and when a tra ve l document will issue in this case. In fact, the Government's argument is id e n tic a l to arguments rejected previously as insufficient justification for indefinite d e te n tio n . See Azad v. Interim Dist. Director, N.Y. Immigration & Customs E n fo rc e m e n t, No. 09 Civ. 2451, 2009 W L 2569132, at *3 (S.D.N.Y. Aug. 19, 2 0 0 9 ) ("[T]he negative statement that the consulate has not given ICE any reason to believe that a travel document will not issue is not equivalent to a statement th a t the consulate has given ICE reason to believe that a travel document will is s u e ."); cf. Singh v. Mule, No. 07-CV-6387, 2009 W L 204618, at *6 (W .D .N .Y . J a n . 27, 2009) (Siragusa, J.) ("Furthermore, DHS/ICE, in conducting their d e te n tio n reviews of Singh, based their decision to continue holding him in c u s tod y solely on their hopeful `expectation' that a travel document would be iss u e d by India in the reasonably foreseeable future."). The Court likewise rejects 7

th a t argument here. The Court recognizes that consulate offices from nations w illin g to issue travel documents need time to prepare those documents, and that th o s e offices have the right to set any timetables that they wish. That is not the is s u e here. The issue here is that, under Zadvydas, the Government cannot e xp lo it another nation's timetables to justify an indefinite detention. At some point in every detention case, under the Supreme Court's interpretation of the im m ig ra tio n detention statute, a line must be drawn. Either a travel document for p e titio n e r indeed is forthcoming soon, or the indefinite timetable submitted by the G o ve rn m e n t will have to run its course under conditions of supervised release. C O N C L U S IO N F o r all of the foregoing reasons, the Court hereby grants the pending p e titio n conditionally. If the Government does not file an executed W a rra n t of R e m o va l / Deportation within 60 days of entry of this Order then a writ of habeas c o rp u s shall issue at that time, directing petitioner's immediate release under c o n d itio n s of supervision pursuant to 8 U.S.C. § 1231(a)(3) and corresponding r e g u la t io n s .

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA CHIEF JUDGE UNITED STATES DISTRICT COURT DATED: September 11, 2009 8