Haley v. Holder et al
Filing
8
-CLERK TO FOLLOW UP--DECISION AND ORDER denying the petition and dismissing the case. This dismissal is without prejudice to file another petition should it subsequently appear that the presumptively reasonable period of post-removal-order detention has elapsed, and that removal is no longer reasonably foreseeable. Leave to appeal as a poor person is denied. The Clerk is directed to enter judgment in favor of respondent and to close this case. Signed by Hon. John T. Curtin on 5/8/2013. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
COLIN J. HALEY, A37-139-710,
Petitioner,
-v-
12-CV-1148-JTC
ERIC H. HOLDER, Attorney General
of the United States;
MICHAEL PHILIPS, Field Office Director
for Detention and Removal, Buffalo Field
Office, Bureau of Immigration and Customs
Enforcement;
Department of Homeland Security; and
TODD TRYON, Facility Director, Buffalo
Federal Detention Facility,
Respondents.
INTRODUCTION
Petitioner Colin J. Haley, an alien under a final order of removal from the United
States, has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 seeking release from detention in the custody of the United States Department of
Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”), pending the
execution of a final immigration order of removal issued against him. Item 1. As directed
by this court’s order entered December 4, 2012 (Item 2), respondent1 has submitted an
1
The only proper respondent in this proceeding is Todd Tryon, Assistant Field Office Director,
Immigration and Customs Enforcement, Buffalo, New York Office, and Director of the Buffalo Federal
Detention Facility, as he is “the person who has custody over [the petitioner].” 28 U.S.C. § 2242; see also
§ 2243 (“The writ, or order to show cause shall be directed to the person having custody of the person
detained.”); Rumsfeld v. Padilla, 542 U.S. 426, 434–35 (2004).
answer and return (Item 6), along with an accompanying memorandum of law (Item 7), in
opposition to the petition.
For the reasons that follow, the petition is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner, a native and citizen of Guyana, was admitted to the United States at New
York City on or about June 22, 1983, as a “P-22" immigrant (unmarried son of a lawful
permanent resident). See Item 6-1 (Declaration of DHS Deportation Officer Juanita
Payan),¶ 5; Item 6-2 (Exh. A attached to Payan Decl.), pp. 8, 17.
DHS records reflect that petitioner was convicted of the following criminal offenses
while present in the United States:
a.
On or about August 26, 1987, petitioner was convicted in New York State
Supreme Court, New York County, of Attempted Burglary in the 2nd Degree:
Illegal Entry with Criminal Intent. He was sentenced to 5 years probation.
b.
On or about September 29, 1988, petitioner was convicted in Albany, New
York, City Court of Assault in the 3rd Degree. He was sentenced to a term
of incarceration of 1 year.
c.
On or about September 11, 1990, petitioner was convicted in Albany City
Court of Menacing. He was sentenced to time served.
d.
On or about June 8, 1992, petitioner was convicted in Albany City Court of
Driving While Intoxicated/Impaired by the Consumption of Alcohol. He was
sentenced to 90 days incarceration.
e.
On or about March 29, 1993, petitioner was convicted in Town Court in
Colonie, New York, of Petit Larceny. He was sentenced to 90 days
incarceration.
f.
On or about June 23, 1993, petitioner was convicted in Village Court,
Menands, New York, of Petit Larceny. He was sentenced to 15 days
incarceration.
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g.
On or about September 16, 1993, petitioner was convicted in Albany Town
Court of Petit Larceny. He was sentenced to 226 days incarceration.
h.
On or about October 26, 1995, petitioner was convicted in Troy, New York,
City Court of Assault in the 3rd Degree: With Intent to Cause Physical Injury.
He was sentenced to time served and granted a conditional discharge.
i.
On or about October 29, 1997, petitioner was convicted in Troy City Court of
Petit Larceny. He was sentenced to 6 months incarceration.
j.
On or about November 13, 1998, petitioner was convicted in Albany County
Court of Driving While Intoxicated and Aggravated Unlicensed Operation of
a Motor Vehicle in the 1st Degree. He was sentenced to 1 year
incarceration.
k.
On or about January 11, 1999, petitioner was convicted in Troy City Court of
Assault in the 3rd Degree: With Intent to Cause Physical Injury. He was
sentenced to 6 months incarceration.
l.
On or about February 7, 2000, petitioner was convicted in Albany County
Court of Driving While Intoxicated: Previous Conviction Designated Offense
Within 10 Years and Aggravated Unlicensed Operation of a Motor Vehicle
in the 1st Degree. He was sentenced to 9 months incarceration and fined
$1,000.
m.
On or about December 18, 2002, petitioner was convicted in Rensselaer,
New York, County Court of Driving While Intoxicated: Two Previous
Convictions of Designated Offense within 10 Years and Aggravated
Unlicensed Operation of a Motor Vehicle in the 1st Degree. He was
sentenced to 1 year incarceration and fined $500.
n.
On or about February 18, 2009, petitioner was convicted in Troy City Court
of Attempted Assault in the 3rd Degree: With Intent to Cause Physical
Injury. He was granted a conditional discharge.
o.
On or about August 4, 2010, petitioner was convicted in Schenectady, New
York, County Court of Driving While Intoxicated. He was sentenced to 360
days incarceration and fined $500.
Item 6-2, pp. 8-9.
Following his conviction and sentence on August 4, 2010, petitioner was sent to
Schenectady County Jail where he was encountered that same day by ICE officers and
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taken into DHS custody. Id. at 9-10. He was served with a Notice to Appear (“NTA”),
dated August 4, 2010, charging him with being removable from the United States pursuant
to INA § 237(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 misconduct. Id. at 15. Petitioner
was served with Additional Charges of Inadmissibility/Deportability on October 6, 2010, and
May 25, 2011, which added factual allegations to the NTA regarding petitioner’s criminal
convictions. Id. at 18, 20.
On August 19, 2011, an immigration judge (“IJ”) denied petitioner’s requests for
relief from removal, and ordered petitioner removed from the United States to Guyana. Id.
at 10. Petitioner appealed the IJ’s decision to Board of Immigration Appeals (“BIA”), and
the IJ’s order of removal became final on December 9, 2011, when the BIA dismissed
petitioner’s appeal. Id. at 22. On December 28, 2011, petitioner filed a petition in the
United States Court of Appeals for the Second Circuit, seeking review of the BIA’s
December 9, 2011 order. See id. at 29-31 (Docket Sheet, Haley v. Holder, Dkt No. 115395 (2d Cir.)).
Meanwhile, on December 16, 2011, DHS sent a presentation packet to the Embassy
of Guyana (the “Embassy”) in Washington, D.C., requesting that a travel document be
issued for petitioner’s removal. Item 6-1, ¶ 16. According to DHS records, on January 13,
2012, an Embassy representative notified DHS that the Embassy will not issue a travel
document for petitioner while his petition for review remains pending in federal court.
On January 12, 2012, DHS served petitioner with a Form I-229(a), Warning for
Failure to Depart, along with an instruction sheet listing actions that petitioner was required
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to complete within 30 days to assist in obtaining a travel document for his removal from the
United States. Item 6-2, pp. 13-14. The warning form advised petitioner, among other
things, of penalties under INA § 243 for conniving or conspiring to prevent or hamper his
departure from the United States, and also advised him that, pursuant to INA
§ 241(a)(1)(C), failure to comply or provide sufficient evidence of his inability to comply
may result in the extension of the removal period and subject him to further detention. Id.
On March 7, 2012, petitioner was served with a copy of a written decision (id. at 812) advising petitioner that, upon review of his custody status, DHS had determined to
continue his detention “pending the outcome of your federal litigation and ultimately your
removal from the United States.” Id. at 11. This determination was based upon the totality
of information available in petitioner’s case file, including his extensive criminal history
indicating that he would be a threat to the community and a flight risk if he were to be
released from custody. Id.
Also on March 7, 2012, petitioner filed a motion with the BIA seeking to reopen his
immigration removal proceedings, which was denied by the BIA on April 9, 2012. Id. at 25.
On April 25, 2012, petitioner filed a second motion to reopen his immigration removal
proceedings, which was denied by the BIA on June 13, 2012. Id. at 24.
On April 26, 2012, petitioner filed a second petition for review with the Second
Circuit, this time seeking review of the BIA’s order of April 9, 2012. See id. at 34-36
(Docket Sheet, Haley v. Holder, Dkt. No. 12-1706 (2d Cir.)). This petition for review was
accompanied by a request for stay of removal. Id. at 35.
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On May 16, 2012, the Second Circuit dismissed petitioner’s initial petition for review,
finding no “arguable basis in law or fact.” Id. at 32. This order was issued as a mandate
on July 23, 2012. Id. at 32-33. Petitioner’s second petition for review and motion for stay
of removal remain pending before the Second Circuit. Id. at 34-36.
DHS conducted further reviews of petitioner’s custody status in June, September,
and December 2012. Following each review, petitioner was notified that DHS determined
to continue his detention in DHS custody. Id. at 2, 3, 5.
Petitioner filed this action on November 20, 2012, seeking habeas corpus relief
pursuant to 28 U.S.C. § 2241 on the ground that his continued detention in DHS custody
since December 9, 2011, when the Immigration Judge’s order of removal became final, is
unlawful since it has exceeded the “presumptively reasonable” six-month period
established under the due process standards set forth by the United States Supreme Court
in Zadvydas v. Davis, 533 U.S. 678 (2001). Upon full consideration of the matters set forth
in the submissions on file, and for the reasons that follow, the petition is denied.
DISCUSSION
Petitioner challenges his continued detention by way of habeas corpus review under
28 U.S.C. § 2241, which “authorizes a district court to grant a writ of habeas corpus
whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of the
United States.’ ” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C.
§ 2241(c)(3)); see also Zadvydas, 533 U.S. at 687 (petition under § 2241 is the basic
method for statutory and constitutional challenges to detention following order of removal).
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Matters pertaining to the detention of aliens pending the completion of immigration
removal proceedings and pending removal following the entry of a final order of removal
are governed by two separate provisions of the INA–respectively, INA § 236, which
authorizes the arrest and detention of an alien on warrant pending a decision on whether
the alien is to be removed from the United States, and INA § 241, which authorizes
detention of aliens after the issuance of a final removal order. In this case, petitioner’s
detention at the time he filed his habeas petition was pursuant to INA § 241(a), which
requires the Attorney General to accomplish an alien’s removal from the United States
within a period of ninety days (the “removal period”), commencing on the latest of the
following dates:
(i) The date the order of removal becomes administratively
final.
(ii) If the removal order is judicially reviewed and if a court
orders a stay of the removal of the alien, the date of the court’s
final order.
(iii) If the alien is detained or confined (except under an
immigration process), the date the alien is released from
detention or confinement.
8 U.S.C. § 1231(a)(1)(B).
Detention during the ninety-day removal period is mandatory. See INA § 241(a)(2)
(“During the removal period, the Attorney General shall detain the alien.”). The statute also
authorizes the Attorney General to continue detention of certain criminal aliens–i.e., aliens
ordered removed due to conviction of an enumerated crime–beyond the expiration of the
ninety-day removal period. See INA § 241(a)(6).2
2
INA § 241(a)(6) provides in full as follows:
An alien ordered removed who is inadmissible under section 1182 of this title, removable
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In Zadvydas, the Supreme Court was presented with the challenge of reconciling
this apparent authorization of indefinite detention with the Fifth Amendment’s prohibition
against depriving a person of their liberty without due process. The Court determined that
INA § 241(a) authorizes detention after entry of an administratively final order of
deportation or removal for a period that is “reasonably necessary” to accomplish the alien’s
removal from the United States. Zadvydas, 533 U.S. at 699-700. Recognizing the
practical necessity of setting a “presumptively reasonable” time within which to secure
removal, the court adopted a period of six months “for the sake of uniform administration
in the federal courts ….” Id. at 701.
After this 6-month period, once the alien provides good reason to believe that
there is no significant likelihood of removal in the reasonably foreseeable
future, the Government must respond with evidence sufficient to rebut that
showing. And for detention to remain reasonable, as the period of prior
postremoval confinement grows, what counts as the “reasonably foreseeable
future” conversely would have to shrink. This 6-month presumption, of
course, 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.
To comply with the Supreme Court’s ruling in Zadvydas, the Attorney General has
promulgated regulations providing for review of the custody status of aliens who have been
detained for more than six months after the issuance of a final order of removal. Under
these regulations, a detainee who has been in post-removal-order custody for more than
under section 1227(a)(1)(C), 1227(a)(2),or 1227(a)(4) 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 and, if released,
shall be subject to the terms of supervision in paragraph (3).
8 U.S.C. § 1231(a)(6).
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six months may submit a written request for release to DHS Headquarters Post-order
Detention Unit (“HQPDU”) setting forth “the basis for the alien’s belief that there is no
significant likelihood that the alien will be removed in the reasonably foreseeable future to
the country to which the alien was ordered removed and there is no third country willing to
accept the alien.” 8 C.F.R. § 241.13(d)(1). The written request must include “information
sufficient to establish his or her compliance with the obligation to effect his or her removal
and to cooperate in the process of obtaining necessary travel documents.” 8 C.F.R.
§ 241.13(d)(2).
In reviewing the request for release, the agency is required to consider “all the facts
of the case including, but not limited to,” the following:
[T]he history of the alien's efforts to comply with the order of removal, the
history of the Service's efforts to remove aliens to the country in question or
to third countries, including the ongoing nature of the Service's efforts to
remove this alien and the alien's assistance with those efforts, the
reasonably foreseeable results of those efforts, and the views of the
Department of State regarding the prospects for removal of aliens to the
country or countries in question. Where the Service is continuing its efforts
to remove the alien, there is no presumptive period of time within which the
alien's removal must be accomplished, but the prospects for the timeliness
of removal must be reasonable under the circumstances.
8 C.F.R. § 241.13(f).
If the agency finds that the alien has met the burden of demonstrating good reason
to believe there is no significant likelihood of removal in the reasonably foreseeable future,
and that there are no special circumstances justifying continued detention, then it must
order the detainee released. 8 C.F.R. § 241.13(g)(1). However, the agency may impose
certain conditions of release on the alien, such as requiring a bond, attendance in a
rehabilitative program, or submission to a medical or psychiatric examination. See 8
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C.F.R. §§ 241.5(b), 241.13(h)(1); see also Zadvydas, 533 U.S. at 695 (“[W]e nowhere deny
the right of Congress to remove aliens, to subject them to supervision with conditions when
released from detention, or to incarcerate them where appropriate for violations of those
conditions.”).
As set forth above, in this case petitioner was received into DHS custody on August
4, 2010, upon his release from the Schenectady County Jail, for detention pending
completion of immigration removal proceedings as authorized by INA § 236. See Item 6-1,
¶ 9. This detention continued until December 9, 2011, when the BIA dismissed petitioner’s
appeal of the IJ’s order of removal. See 8 C.F.R. § 1241.1(b) (order of removal becomes
final upon dismissal of appeal by the BIA).
After the order of removal became final on December 9, 2011, petitioner’s detention
was authorized by INA §§ 241(a)(1)(B)(i) and (2), and the removal period commenced.
DHS promptly undertook efforts to secure a travel document for petitioner’s removal to
Guyana. However, on December 28, 2011, petitioner filed a petition for review in the
Second Circuit challenging the final order of removal. Then, on April 26, 2012–while the
initial petition for review was pending–petitioner filed a second petition for review
accompanied by a motion for stay of removal.
Numerous decisions by the federal courts within the Second Circuit have held that
the filing of a petition for circuit court review of the final order of removal, accompanied by
a motion for stay of removal, triggers the application of a “forbearance policy” recognized
by agreement between DHS and the Second Circuit under which DHS has agreed not to
effectuate the removal of an alien while he or she has a petition for review pending before
the circuit court. See, e.g., Persaud v. Holder, 2011 WL 5326465, at *1 (W.D.N.Y. Nov.
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3, 2011) (filing of petition for circuit court review of final order of removal along with motion
for stay of removal triggers “forbearance policy”); Luna-Aponte v. Holder, 743 F. Supp. 2d
189, 197 (W.D.N.Y. 2010) (even though circuit court had not “formally” ruled on motion to
stay accompanying petition for review of BIA’s dismissal of appeal from removal order,
forbearance policy is “the equivalent of a court-ordered stay of removal”); Shehnaz v.
Ashcroft, 2004 WL 2378371, at *2 (S.D.N.Y. Oct. 25, 2004) (where circuit court had not yet
ruled on alien's requests to stay removal and for review of BIA's order, a stay of removal
was in effect pursuant to Second Circuit forbearance policy); cf. Abimbola v. Ridge, 181
F. App’x 97, 99 (2d Cir. 2006) (“consistent pattern” of filing petition for circuit court review
accompanied by motions to stay removal triggered application of Second Circuit's
forbearance policy; petitioner’s “self-inflicted wound should not establish grounds for [his]
Zadvydas claim”) (citing Doherty v. Thornburgh, 943 F.2d 204, 205 (2d Cir. 1991)
(petitioner cannot rely on delays resulting from litigation strategy to claim that prolonged
detention violates substantive due process).
Pursuant to this policy, the removal period which began on December 9, 2011, was
“effectively stayed” as of December 28, 2011, when petitioner filed his petition for review
with the Second Circuit. Luna-Aponte, 743 F. Supp. 2d at 190. Therefore, DHS had
slightly more than two weeks to obtain the travel documents necessary for execution of the
removal order prior to the filing of the petition for circuit court review (during which time
petitioner’s detention was mandatory, see INA § 241(a)(2)), and cannot resume its efforts
until circuit court litigation is resolved.
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Accordingly, because the detention challenged by the habeas petition in this action
has been prolonged by petitioner’s own pursuit of judicial review of the final order of
removal, the duration of his detention cannot be found to constitute a violation of his rights
under the due process clause of the Fifth Amendment. Doherty, 943 F.2d at 211 (refusing
to find eight-year detention unconstitutional where alien’s pursuit of judicial and
administrative review caused the delay in removal); Dor v. District Director, INS, 891 F.2d
997, 1002 (2d Cir. 1989) (same, but with four year detention); see also Khaleque v.
Department of Homeland Sec., 2009 WL 81318, at *3 (W.D.N.Y. Jan. 9, 2009) (denying
alien’s habeas petition upon finding that alien “elected to file a petition for review and a
motion for a stay of removal” which “acted to prevent his removal until the Second Circuit
issued its mandate”).
Furthermore, considering petitioner’s habeas challenge under the due process
standards set forth in Zadvydas, petitioner must first “provide[ ] good reason to believe that
there is no significant likelihood of removal in the reasonably foreseeable future.”
Zadvydas, 533 U.S. at 701. Only if he makes this initial showing does the burden shift
back to the government, which “must respond with evidence sufficient to rebut that
showing.” Id.; see also Wang, 320 F.3d at 146 (“reasonable foreseeability” test of
Zadvydas “articulates the outer bounds of the Government's ability to detain aliens (other
than those serving criminal sentences) without jeopardizing their due process rights”).
Upon review of the submissions on the present petition, the court finds that
petitioner has failed to sustain his initial burden under Zadvydas. The petition sets forth
no factual basis to substantiate petitioner’s belief that there is no significant likelihood he
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can be removed to Guyana in the reasonably foreseeable future. He simply alleges that
the Embassy “has not issued any travel documents and there is no certainty as to when,
if ever, such papers will be issued.” Item 1, ¶ 15. However, as discussed above, the
request for a travel document for petitioner remains pending with the Embassy, and there
is nothing in the record before the court to indicate that Guyanan authorities are inclined
to deny the request upon resolution of petitioner’s litigation in the Second Circuit.
In addition, the available statistical evidence reveals that in recent years, DHS has
successfully repatriated significant numbers of aliens to Guyana, indicating no institutional
barriers to petitioner’s removal. For example, DHS reports show that in fiscal year (“FY”)
2009, a total of 305 aliens were repatriated to Guyana; in FY 2010, 221 aliens were
repatriated to Guyana; and in FY 2011, 189 aliens were repatriated to Guyana. See DHS
Yearbook of Immigration Statistics: 2011, Table 41: http://www.dhs.gov/yearbookimmigration-statistics-2011-3. These circumstances provide a reasonable basis for DHS’s
expectation that the verification required for the issuance of a travel document by the
Guyanan government can be accomplished within the reasonably foreseeable future
following resolution of petitioner’s pending request for review by the Second Circuit, after
which time the necessary travel arrangements may be made for petitioner’s release from
custody and his repatriation to Guyana.
Significantly, petitioner has provided no evidence to contradict this expectation, or
to otherwise establish compliance with the requirements of the DHS regulations described
above. Instead, petitioner relies solely on the fact that his detention has exceeded the
presumptively reasonable six-month period established in Zadvydas. See Item 1, ¶¶ 15,
31. However, several cases decided within this district have found the habeas petitioner’s
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assertion as to the unforeseeability of removal, supported only by the mere passage of
time, insufficient to meet the petitioner’s initial burden to demonstrate no significant
likelihood of removal under the Supreme Court’s holding in Zadvydas.
See, e.g.,
Khaleque, 2009 WL 81318, at *4 (petitioner failed to meet initial burden where the only
evidence relied upon was the fact that the Consulate had not responded positively to the
request for a travel document); Kassama v. Dep't of Homeland Sec., 553 F. Supp. 2d 301,
306-07 (W.D.N.Y. 2008) (petitioner failed to meet initial burden where there was no
evidentiary proof in admissible form to suggest that travel documents would not be issued);
Haidara v. Mule, 2008 WL 2483281, at *3 (W.D.N.Y. June 17, 2008) (petitioner failed to
meet initial burden where he “merely ma[de] the general assertion that he will not be
returned to [his country] in the foreseeable future”); Roberts v. Bureau of Immigration &
Customs Enforcement, 2007 WL 781925, at *2 (W.D.N.Y. Mar. 13, 2007) (petitioner who
did not present evidence that his country would not provide travel documents did not meet
initial burden of proof.); Singh v. Holmes, 2004 WL 2280366, at *5 (W.D.N.Y. Oct. 8, 2004)
(petitioner who “failed to submit anything demonstrating that there is no significant
likelihood of removal in the reasonably foreseeable future” did not meet initial burden of
proof); see also Juma v. Mukasey, 2009 WL 2191247, at *3 (S.D.N.Y. July 23, 2009)
(vague, conclusory and general claims that removal is not foreseeable, and that Embassy
will not issue travel document in foreseeable future, fails to meet initial burden).
Based on this authority, and upon full consideration of the record presented by way
of the parties’ submissions, the court finds that petitioner has failed to meet his initial
burden under Zadvydas to “provide[ ] good reason to believe that there is no significant
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likelihood of removal in the reasonably foreseeable future,” Zadvydas, 533 U.S. at 701, and
that petitioner may not rely on the delay resulting from his request for circuit court review
of the final order of removal to claim that his prolonged detention violates substantive due
process. Accordingly, petitioner has failed to demonstrate that he is “in custody in violation
of the Constitution or laws or treaties of the United States” for the purposes of granting
habeas corpus relief under 28 U.S.C. § 2241, and his petition must be denied.
CONCLUSION
For the foregoing reasons, the petition is denied, and the case is dismissed. This
dismissal is without prejudice to file another petition should it subsequently appear that the
presumptively reasonable period of post-removal-order detention has elapsed, and that
removal is no longer reasonably foreseeable. See Andreenko v. Holder, 2012 WL
4210286, at *5 (W.D.N.Y. Sept. 18, 2012); Kassama, 553 F. Supp. 2d at 307.
It is further ordered that certification pursuant to 28 U.S.C. § 1915(a)(3) be entered
stating that any appeal from this Judgment would not be taken in good faith and therefore
leave to appeal as a poor person should be denied. Coppedge v. United States, 369 U.S.
438 (1962).
The Clerk of the Court is directed to enter judgment in favor of respondent, and to
close the case.
So ordered.
\s\ John T. Curtin
JOHN T. CURTIN
United States District Judge
Dated: May 8, 2013
p:\pending\2012\12-1148.2241.may2.2013
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