Lucien v. Tryon et al
Filing
16
DECISION AND ORDER denying petition for a writ of habeas corpus; dismissing the petition; and denying petitioner's request for a bond hearing. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/30/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
YVON LUCIEN, A18-122-931,
DECISION AND ORDER
No. 11-CV-911(MAT)
Petitioner,
-vsTODD L. TRYON, and
DEPARTMENT OF HOMELAND SECURITY
Respondents.
________________________________
I.
Introduction
Pro se Petitioner Yvon Lucien(“Lucien” or “Petitioner”), an
alien subject to ongoing removal proceedings, seeks a writ of
habeas
corpus
pursuant
to
28
U.S.C.
§
2241
challenging
his
continued detention in the custody of Respondents (“Respondents” or
“the Government”), and seeks an order releasing him from mandatory
detention,
or,
in
the
alternative,
granting
Petitioner
an
individualized bond determination hearing.
II.
Facts & Procedural History
Petitioner, a native of the Democratic Republic of the Congo
and a citizen of both Haiti and the Democratic Republic of the
Congo, was admitted to the United States on or about November 1,
1968, as a lawful permanent resident. See Declaration of Donald J.
Vaccaro, Jr. (“Vaccaro Declaration”), dated 12/16/2011, at ¶ 5
(Exhibit 1 of Resp’t Answer and Return).
On
or
about
April
16
and
May
22,
1996,
respectively,
Petitioner was convicted in Kings County of Attempted Sale of a
Controlled Substance in the Third Degree, in violation of N.Y.
Penal Law (“Penal Law”) §§ 110.00, 220.39[1], and was sentenced to
60 days imprisonment and five years probation for the former
offense, and 90 days imprisonment and five years probation for the
latter offense.
On or about January 16, 2001, April 18, 2003, and
January 17, 2006, respectively, Petitioner was convicted in Kings
County of Criminal Possession of a Controlled Substance in the
Seventh Degree, in violation of Penal Law § 220.03.
He was
sentenced to five days imprisonment for the first offense, to
thirty days imprisonment for the second offense, and to time served
for the third offense.
On or about March 1, 2005, Petitioner was
convicted in Kings County of Assault in the Third Degree, in
violation of Penal Law § 120.00[1], and sentenced to 30 days
imprisonment.
On or about November 21, 2006, Petitioner was
convicted in Kings County of Assault in the Second Degree, in
violation of Penal Law § 120.05[2], and was sentenced to a three
year term of imprisonment and three years post release supervision.
Id. at ¶ 6.
On April 4, 2011, Lucien was encountered by officers assigned
to the Department of Homeland Security (“DHS”) Batavia Criminal
Alien Program at the Willard Drug Treatment Campus in Willard,
New York.
Lucien was sent to Willard Drug Treatment Campus in
2
January 2011 because he violated a condition of his parole related
to his November 21, 2006 conviction for Assault in the Second
Degree.
Id. at ¶ 7.
After the DHS officers verified Lucien’s immigration status,
he was placed in immigration removal proceedings by a Notice to
Appear, dated
Immigration
June
and
28,
2011,
Nationality
which
Act
charged
(“INA”)
§
him,
pursuant
to
237(a)(2)(A)(iii),
8 U.S.C. § 1227(a)(2)(A)(iii), with being subject to removal from
the United States as an alien who has been convicted of an
aggravated felony crime as defined in INA § 101(a)(43)(F), 8 U.S.C.
§
1101(a)(43)(F),
a
crime
of
violence;
pursuant
to
INA
§ 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), with being subject
to removal from the United States as an alien who has been
convicted of a controlled substance offense; pursuant to INA
§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who
has been convicted of an aggravated felony as defined in INA § 101
(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), a law relating to the
illicit trafficking in a controlled substance; and pursuant to INA
§ 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien who
has been convicted of two crimes involving moral turpitude not
arising out of a single scheme of criminal conduct.
Id. at ¶ 8.
Upon his release from the Willard Drug Treatment Campus,
Petitioner was received into DHS custody on July 5, 2011.
¶ 9.
Id. at
On October 5, 2011, an Immigration Judge (“IJ”), after
3
conducting a hearing at Petitioner’s request, denied Lucien’s
request for change in custody status and determined that Lucien was
subject to mandatory detention pursuant to the provisions of INA
§ 236(c).
Id. at ¶ 8.
Lucien appealed the IJ’s denial of bond,
which was denied by the Board of Immigration Appeals (“BIA”) on
December 27, 2011. See Resp’t Supplemental Affidavit (Dkt. No. 12)
at Ex.
On
A, p 1-4.
April
30,
2012,
at
the
conclusion
of
immigration
proceedings in the Immigration Court, the IJ found Petitioner
removable from the United States and ordered him removed to Haiti.
Id. at ¶ 11.
On June 6, 2012, Petitioner appealed the IJ’s
decision of April 30, 2012 to the BIA, which remains pending.
Id.
at ¶ 12.
In the instant habeas corpus petition, Petitioner seeks relief
on the basis that “Respondents hold him in mandatory detention,
unlawfully, without the opportunity for bail or bond assessment,
pursuant to an erroneous interpretation of Section 236(c) . . . .”
Pet. at 1.
For the reasons that follow, habeas relief is denied,
Petitioner’s request for a bond hearing is denied, and the petition
is dismissed.
III. DISCUSSION
A.
Jurisdiction and Exhaustion
As an initial matter, this Court has jurisdiction to review
the petition.
It is well-established that district courts retain
4
jurisdiction
statutory
to
consider
framework
proceedings.
an
alien’s
mandating
his
habeas
challenge
detention
during
to
the
removal
See 28 U.S.C. § 2241(c)(3) (noting that the writ of
habeas corpus may extend to those held in custody in violation of
the constitution “or laws or treaties of the United States”);
Demore v. Kim, 538 U.S. 510, 517 (2003) (finding that the INA does
not bar habeas review of statutory or constitutional challenges to
detention).
The issue of exhaustion also does not bar this Court from
reviewing the petition.
On October 5, 2011, an IJ denied Lucien’s
request for change in custody status and determined that he was
subject to mandatory detention pursuant to the provisions of INA
§ 236(c).
Lucien appealed the IJ’s decision to the BIA, and the
appeal was denied.
p 1-4.
See Resp’t Supplemental Affidavit at Ex. A,
Accordingly, Petitioner has exhausted the issues presented
in the habeas petition, and said claims are properly before this
Court.1
B.
Petitioner is Properly Held in Mandatory Detention under INA
§ 236(c)
Section 236 of the INA provides, in pertinent part, for the
mandatory detention of:
any alien who . . . is deportable by
reason of having committed any offense
1
The Court notes that, at the time Petitioner filed the instant habeas petition,
his appeal of the IJ’s decision was pending in the BIA. See Vaccaro Declaration
(Dkt. No. 5-1) at ¶ 10.
5
covered in section 1227(a)(2)(A)(ii),
(A)(iii), (B), (C) or (D) of this title .
. . when the alien is released, without
regard to whether the alien is released
on
parole,
supervised
release,
or
probation, and without regard to whether
the alien may be arrested or imprisoned
again for the same offense.
8 U.S.C. § 1226(c)(1)(B).
Section 1226(c) is referred to as the
mandatory detention provision because section 1226(c)(1) requires
the Attorney General to take certain aliens into custody, and those
aliens cannot be released unless they satisfy the very narrow
requirements set forth in section 1226(c)(2), none of which apply
to Petitioner.
In this case, Lucien’s multiple criminal convictions, which
include a conviction for the aggravated felony offense of assault
and several convictions for controlled substance offenses, place
him among the classes of criminal aliens described in Section
236(c). Moreover, the record reflects that Petitioner was received
into DHS custody on July 5, 2011, upon his release from the Willard
Drug Treatment campus, where he was serving a sentence for a
violation of parole.
See Pet. at 5.
Further, Petitioner admits,
and the record reflects, that he was held at Willard after he
“violated a condition of parole on January 13, 2011.”
Pet. at 5.
Petitioner’s argument that he was released into DHS custody
upon
a
removable
offense
that
was
not
included
among
the
immigration charges that are pending against him is belied by the
6
record.
See Pet. at 5, 11.
The record reflects that the parole
violation which led to Lucien being placed into state custody in
July 2011, was a violation of parole from his November 2006
conviction for Assault in the Second Degree, for which he was
sentenced to a three year term of imprisonment and three years post
release
supervision.
Based
on
his
sentence
for
the
parole
violation, and that he was received into DHS custody upon his
release from state custody at the Willard Drug Treatment Campus,
Petitioner’s
challenge to mandatory detention under INA § 236(c)
is without merit.
C.
Petitioner was Afforded Due Process
Petitioner argues that “due process affords him a right to a
hearing before an impartial official, giving him a chance to show
that . . . he poses no risk that would justify confining him
between the moment the government claims he is removable and the
adjudication of the government’s claim.” Pet. at 11 (citing Demore
v. Kim).
This claim fails because the record before this Court
reflects that Lucien was provided the process that is due a
criminal alien under the circumstances presented here.
Immigration regulations issued under INA § 236 include a
provision that grants aliens in removal proceedings a right to bond
hearings, and for review and redetermination of the bond decisions,
upon the alien’s request.
See 8 C.F.R. §§ 1236.1 and 1003.19.
Aliens who are in mandatory detention pursuant to § 236(c) have a
7
right to a so-called “Joseph” hearing to determine whether an alien
is properly determined to be within the classes of aliens described
in INA § 236(c)(1)(A)-(D), 8 U.S.C. § 1226(c)(1)(A)-(D).
See
Matter of Joseph, 22 I. & N. Dec. 799, 1999 WL 339053 (BIA 1999);
see generally Arthur v. Gonzales, Nos. 07-CV-6158, 07-CV-6473, 2008
WL 4934065, at *10-11 (W.D.N.Y. Nov. 14, 2008).
Here, Petitioner was afforded a Joseph hearing, at which he
challenged his designation as an alien subject to section 236(c).
The record reflects that, based upon the charges in the Notice to
Appear,
DHS
determined
that
Lucien
detention under Section 236(c).
was
subject
to
mandatory
Subsequently, he moved for a bond
hearing, which the IJ conducted.
On October 5, 2011, the IJ
determined that Section 236(c) applied to Lucien, and entered an
order denying his request for a change in custody status.
Thus,
contrary to his contention, Petitioner was afforded the opportunity
to challenge his designation as an alien subject to section 236(c).
Moreover,
the
Court
notes
that
Petitioner’s
argument
in
support of an alleged due process violation –- i.e., that he was
not given an opportunity “to show that . . . he poses no risk that
would justify confining him between the moment the government
claims he is removable and the adjudication of the government’s
claim” –- is an argument which is discretionary in nature rather
than an argument directed toward mandatory detention under INA
§
236(c).
However,
as
discussed supra,
8
Lucien
was
properly
detained under 236(c) as a criminal alien and requested and was
granted a Joseph hearing in which he challenged his designation as
an alien subject to section 236(c).
Thus, he was afforded the
process due him under the circumstances of his case, and therefore
his claim of a due process violation is without merit and provides
no basis for habeas relief.
III. Conclusion
For the reasons stated above, the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 is denied (Dkt. No. 1),
and the petition is dismissed.
hearing is denied.
Petitioner’s request for a bond
Because Petitioner has failed to make “a
substantial showing of a denial of a constitutional right,” 28
U.S.C.
§
2253(c)(2),
I
decline
to
issue
a
certificate
of
appealability. See, e.g., Lucidore v. New York State Div. of
Parole, 209 F.3d 107, 111-113 (2d Cir. 2000).
The Court also
hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this judgment would not be taken in good faith and
therefore denies leave to appeal as a poor person.
Coppedge v.
United States, 369 U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
9
with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
October 30, 2012
Rochester, New York
10
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