Muhury v. Tryon et al
Filing
11
DECISION AND ORDER denying petition for a writ of habeas corpus. Clerk of Court to close case. Signed by Hon. Richard J. Arcara on 12/2/2011. (JMB)
UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK
ASHISH MUHURY, A# 58-997-099,
Petitioner,
DECISION AND ORDER
11-CV-539A
v.
TODD TRYON et al.,
Respondents.
I.
INTRODUCTION
On June 24, 2011, petitioner Ashish Muhury filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, challenging the legality of his
continued immigration detention. In support of his petition, petitioner notes that
he has been in immigration custody for over a year now and that neither
respondents nor his native country of Bangladesh has given any indication that
the issuance of a travel document is reasonably foreseeable. Respondents
counter that this case is only a few months beyond the presumptively reasonable
period of detention set forth in Zadvydas v. Davis, 533 U.S. 678 (2001), that they
have asked Bangladesh for an expedited travel document, and that petitioner
would pose a danger to the community if released.
The Court has deemed the matter submitted on papers pursuant to Rule
78(b) of the Federal Rules of Civil Procedure. For the reasons below, the Court
denies the petition.
II.
BACKGROUND
This case concerns petitioner’s attempt to end his immigration detention
while he awaits final removal to Bangladesh. Petitioner is a native and citizen of
Bangladesh who was admitted to the United States at New York City on or about
July 4, 2007 as a lawful permanent resident. On January 11, 2010, petitioner
was convicted in the Criminal Court of the City of New York of Forcible Touching,
a Class A misdemeanor under New York Penal Law § 130.52. As a result of
petitioner’s conviction, respondents initiated removal proceedings against him on
March 10, 2010. Respondents charged petitioner under 8 U.S.C.
§ 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony as defined in 8
U.S.C. § 1101(a)(43)(A).1 Respondents further charged petitioner under 8 U.S.C.
1
Although petitioner’s conviction counts only as a misdemeanor under
state law, 8 U.S.C. § 1101(a)(43)(A) includes any “sexual abuse of a minor” as an
“aggravated felony” for purposes of immigration law. Cf. Ganzhi v. Holder, 624
F.3d 23, 30 (2d Cir. 2010) (denying an immigration habeas petition where an
alien’s conviction for sexual misconduct constituted a Class A misdemeanor
under state law but an “aggravated felony” under immigration law); U.S. v.
Pacheco, 225 F.3d 148, 154 (2d Cir. 2000) (“[W ]e note that nothing in the
legislative history leads us to doubt our conclusion that a misdemeanor may, in
some cases and consistent with legislative intent, fall within the INA’s definition of
‘aggravated felony.’”).
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§ 1227(a)(2)(A)(i) with being subject to removal from the United States as an
alien who has been convicted of a crime of moral turpitude. On August 17, 2010,
an immigration judge ordered petitioner removed from the United States to
Bangladesh, based on the charge related to a crime of moral turpitude. The
charge related to conviction for an aggravated felony was withdrawn. Petitioner
appealed the order of removal to the Board of Immigration Appeals (“BIA”), which
dismissed the appeal on December 21, 2010. Petitioner appears not to have
sought review of that dismissal before the United States Court of Appeals for the
Second Circuit. Respondents took petitioner into immigration custody on
November 10, 2010 upon his release from state criminal custody. Petitioner has
been in continuous immigration custody since.
The chronology of events occurring after the dismissal of petitioner’s
appeal goes to the heart of petitioner’s request for relief. On December 29, 2010,
respondents sent a presentation packet to the Consulate of Bangladesh
requesting the issuance of a travel document. Since then, respondents have
maintained intermittent communication with the Consulate, which has indicated
that a travel document is forthcoming pending verification of petitioner’s identity.
Notably, the record indicates that on July 7, 2011, the Bangladesh Ambassador
to the United States directed the Consulate to expedite the issuance of a travel
document. Meanwhile, respondents reviewed petitioner’s file three times and
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decided to keep him in custody. On March 16, 2011, respondents issued a
decision to continue detention on the grounds that his criminal conviction would
make him a threat to the community if he were released. On June 22, 2011,
respondents issued another decision to continue detention on the grounds that
the request for a travel document was pending and that removal was expected to
occur in the reasonably foreseeable future. On August 29, 2011, respondents
issued a third decision to continue detention based on a file review and a
personal interview. Respondents reiterated that they were working with the
government of Bangladesh to secure a travel document and that they expected
petitioner’s removal to occur in the reasonably foreseeable future.
In response to respondents’ repeated decisions to continue his immigration
custody, petitioner filed his habeas corpus petition on June 24, 2011. Petitioner
advances two arguments in support of his request for relief. First, petitioner
argues that the six-month presumptively reasonable detention period discussed
in Zadvydas has passed and that the Consulate of Bangladesh has given no
indication that his removal is reasonably foreseeable. Second, petitioner asserts
that respondents have continued to detain him simply because the Consulate of
Bangladesh has not indicated that a travel document is not forthcoming. In this
sense, petitioner likens his situation to the situation in Gumbs v. Heron, No. 09-
CV-506, 2009 WL 2958002 (W.D.N.Y. Sept. 11, 2009) (Arcara, C.J.), in which
this Court conditionally granted a habeas petition and rejected “the implied basis
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that the longer the detention lasted, the more imminent the issuance of the travel
document would become .” Gumbs, 2009 WL 2958002, at *2. Respondents
counter that there is a finding in petitioner’s file that he would be a threat to the
community if released. Additionally, respondents assert that petitioner is only
about six months outside of the presumptively reasonable period set forth in
Zadvydas, that the presumptively reasonable period is not categorical in nature
anyway, and that they have maintained communications with the Consulate of
Bangladesh to ensure that a travel document is indeed forthcoming.
III.
DISCUSSION
As a preliminary matter, the Court notes that it lacks jurisdiction to review
petitioner’s final order of removal in itself. See 8 U.S.C. § 1252(a)(5) (“[A] petition
for review filed with an appropriate court of appeals in accordance with this
section shall be the sole and exclusive means for judicial review of an order of
removal entered or issued under any provision of this chapter . . . .”). Petitioner
was ordered removed to Bangladesh on August 17, 2010. This final order of
removal, subsequently affirmed through an administrative appeal to the BIA, rests
on petitioner’s criminal conviction under Penal Law § 130.52. Through that
conviction, the Government has determined that petitioner is removable under 8
U.S.C. §§ 1227(a)(2)(A)(i). The Court’s lack of jurisdiction means that it will not
review the substance of this determination. Review of the pending petition thus
will be limited to a review of petitioner’s custody pending final removal.
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The rules governing petitioner’s removal process are straightforward.
“Except as otherwise provided in this section, when an alien is ordered removed,
the Attorney General shall remove the alien from the United States within a
period of 90 days.” 8 U.S.C. § 1231(a)(1)(A). “The removal period begins on . . .
[t]he date the order of removal becomes administratively final.” 8 U.S.C.
§ 1231(a)(1)(B)(i). Here, the parties do not contest that the BIA dismissed
petitioner’s administrative appeal on December 21, 2010. Petitioner had 30 days
to seek judicial review of his order of removal, pursuant to 8 U.S.C. § 1252(b)(1).
Since petitioner ultimately did not seek judicial review, his order of removal
became administratively final as of January 21, 2011. At that point, respondents
chose to invoke another statutory provision that governs detention after the
removal period. “An alien ordered removed who is . . . removable under section
. . . 1227(a)(2) . . . of this title or who has been determined by the Attorney
General to be a risk to the community or unlikely to comply with the order of
removal, may be detained beyond the removal period . . . .” 8 U.S.C.
§ 1231(a)(6).
The question now is what, if anything, to do about a detention that has run
about ten months since it became final. To avoid a theoretically limitless
detention under 8 U.S.C. § 1231(a)(6), “we read an implicit limitation into the
statute before us. In our view, the statute, read in light of the Constitution’s
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demands, limits an alien’s post-removal-period detention to a period reasonably
necessary to bring about that alien’s removal from the United States. It does not
permit indefinite detention.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001). The
Supreme Court went on in Zadvydas to create a six-month presumptively
reasonable period for detention, but that period “does not mean that every alien
not removed must be released after six months. To the contrary, an alien may be
held in confinement until it has been determined that there is no significant
likelihood of removal in the reasonably foreseeable future.” Id. at 701. Here, the
time has not yet arrived to decide that petitioner will not be removed in the
reasonably foreseeable future. Respondents have remained in regular
communication with the Consulate of Bangladesh and have persuaded the
Bangladesh Ambassador to request expedited processing of a travel document.
Cf. Cisse v. Baniek, No. 4:11–cv–00242, 2011 W L 3799026, at *5–6 (S.D. Iowa
August 5, 2011) (“ICE has stated under oath to the Court that the Embassy of
Senegal routinely and regularly produces travel documents like the one sought
here. ICE has also repeatedly sought to obtain the documents in regular
intervals. Most recently, ICE has sought an expedited request for the
documents.”). Only about five months have passed since that request, during
which the Consulate of Bangladesh has acted to confirm petitioner’s identity.
Meanwhile, respondents have acted reasonably in extending petitioner’s
detention after deciding that an alien convicted of a sex offense would endanger
7
the community if released. Cf. Arthur v. Gonzales, Nos. 07-CV-6158,
07-CV-6473, 2008 WL 4934065, at *15 (W.D.N.Y. Nov. 14, 2008) (Siragusa, J.)
(citing a petitioner’s criminal history as a basis to continue detention under 8
U.S.C. § 1231(a)(6)). If the Consulate of Bangladesh confirms petitioner’s
identity and still does not act then the time may come when this Court will have to
break a stalemate between it and respondents. Cf. Gumbs, 2009 WL 2958002,
at *3 (“The Court recognizes that consulate offices from nations willing to issue
travel documents need time to prepare those documents, and that those offices
have the right to set any timetables that they wish. That is not the issue here.
The issue here is that, under Zadvydas, the Government cannot exploit another
nation’s timetables to justify an indefinite detention.”) Under the current facts,
though, taking any such action would be premature.
IV.
CONCLUSION
For all of the foregoing reasons, the Court denies the pending petition (Dkt.
No. 1).
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this Order would not be taken in good faith, and leave to appeal to
the Court of Appeals as a poor person is denied. Coppedge v. U.S., 369 U.S.
438, 82 S. Ct. 917, 8 L. Ed.2d 21 (1962). Further requests to proceed on appeal
as a poor person should be directed, on motion, to the United States Court of
8
Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules
of Appellate Procedure.
The Clerk of the Court shall close this case.
SO ORDERED.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED:December 2, 2011
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