Wynter v. Phillips
Filing
6
-CLERK TO FOLLOW UP-DECISION AND ORDER denying petition and dismissing this case, without prejudice to file another petition for the reasons stated. Any appeal from this judgment would not be taken in good faith; therefore, leave to appeal as a poor person is denied. The Clerk is directed to enter judgment in favor of respondent and close this case. Signed by Hon. John T. Curtin on 5/1/2013. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JEFFREY WYNTER, A18-560-301,
Petitioner,
-v-
12-CV-1233-JTC
MICHAEL PHILLIPS, Field Office
Director, et al.,
Respondents.
INTRODUCTION
Petitioner Jeffrey Wynter, an alien currently detained in the custody of the United
States Department of Homeland Security, Immigration and Customs Enforcement
(collectively, “DHS”), at the Buffalo Federal Detention Facility in Batavia, New York,
pending the execution of a final immigration order of removal issued against him, has filed
this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking
release from detention. Item 1. As directed by this court’s order entered January 4, 2013
(Item 2), respondent1 has submitted an answer and return (Item 4), along with an
accompanying memorandum of law (Item 5), in opposition to the petition.
For the reasons that follow, the petition is denied.
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).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner, a native and citizen of Jamaica, was admitted to the United States at New
York, New York, on or about July 11, 1969, as a lawful permanent resident. See Item 4-2
(Exh. A, attached to Declaration of DHS Deportation Officer Juanita Payan, Item 4-1), pp.
8, 11.
According to DHS records, petitioner has been convicted of the following criminal
offenses:
a.
On or about June 12, 1984, petitioner was convicted in New York
State Supreme Court, Monroe County, of Attempted Sexual Abuse
in the 1st Degree, in violation of N.Y. Penal Law §§ 110-130.65-01.
For this offense, he was sentenced to 5 years probation. On March
26, 1986, petitioner was found in violation of probation and he was resentenced to 1 year imprisonment.
b.
On or about May 7, 1986, petitioner was convicted in Supreme Court,
Monroe County, of Sexual Abuse: contact forcible compulsion, in
violation of N.Y. Penal Law § 130.65-01. For this offense, he was
sentenced to 3 to 6 years imprisonment.
c.
On or about May 13, 1996, petitioner was convicted in Rochester City
Court, Rochester, New York, of Criminal Contempt in the 2nd Degree,
in violation of N.Y. Penal Law § 215.50-03. For this offense, he was
granted a conditional discharge.
d.
On or about July 19, 2000, Petitioner was convicted in Supreme
Court, Monroe County, of Rape in the 1st Degree, in violation of N.Y.
Penal Law § 130.35-01. For this offense, he was sentenced as a
second felony offender to 20 years imprisonment. Petitioner
appealed the conviction to the Appellate Division of New York State
Supreme Court, Fourth Department, which unanimously affirmed the
conviction. Petitioner’s request for leave to appeal to the New York
State Court of Appeals was denied. Petitioner filed a petition in the
United States District Court for the Western District of New York for
habeas corpus relief from this conviction, pursuant to 28 U.S.C.
§ 2254. On December 1, 2006, petitioner’s § 2254 habeas petition
was granted. See Wynters v. Poole, 464 F. Supp. 2d 167 (W.D.N.Y.
2006).
-2-
e.
On or about August 23, 2000, petitioner was convicted in Supreme
Court, Monroe County, of Rape in the 3rd Degree, in violation of N.Y.
Penal Law § 130.25-02 and Sodomy, in violation of N.Y. Penal Law
§ 130.40-02. For these offenses, he was sentenced to 1½ to 3 years
imprisonment. On March 19, 2008, this conviction was vacated by a
New York criminal court pursuant to New York Criminal Procedure
Law § 440.10. Petitioner was tried again, and on September 25,
2008, he was found guilty of Attempted Rape in the 3rd Degree, in
violation of N.Y. Penal Law §§ 110-130.25-02 and sentenced to time
served (approximately 6 years and 10 months). Petitioner appealed
the September 25, 2008 conviction, which was affirmed by the
Appellate Division, Fourth Department, on November 10, 2011.
Petitioner then applied for leave to appeal to the Court of Appeals of
New York which application was denied on March 8, 2012.
Item 4-1, ¶ 6.
Petitioner’s deportation/removal proceedings commenced in October 1988, by
service of an Order to Show Cause which charged petitioner with being deportable based
upon his 1984 and 1986 convictions on charges of sexual abuse. See Item 4-2, p. 12. On
April 7, 1992, petitioner was granted a waiver against deportation pursuant to the former
Immigration and Nationality Act (“INA”) § 212(c). Id.
On September 18, 2006, DHS issued a Notice to Appear (“NTA”) which charged
petitioner with being removable from the United States as an aggravated felon based on
his August 2000 convictions for the offenses of rape and sodomy. Id. On November 28,
2007, an immigration judge (“IJ”) found petitioner to be an aggravated felon ineligible for
any form of relief, and ordered him removed from the United States to Jamaica. Id.
On March 24, 2008, petitioner filed a motion with the Board of Immigration Appeals
(“BIA”) seeking to reopen his immigration proceedings. Id. at 5. On April 4, 2008, the BIA
issued a written decision granting petitioner’s motion and terminating his removal
proceedings because the rape and sodomy convictions underlying petitioner’s removability
-3-
had been vacated by a New York criminal court pursuant to N.Y. Crim. Proc. Law § 440.10.
Id. at 6-7. As mentioned above, in September 2008 petitioner was found guilty of Rape in
the 3rd degree upon re-trial in Monroe County Court, and was sentenced to time served.
Id. at 12, 34.
Following confirmation of the exhaustion of petitioner’s state court appeals from this
conviction (see Item 5, p. 7, n. 4), DHS re-commenced petitioner’s removal proceedings
were by issuance of a further NTA on July 16, 2012, charging petitioner with being subject
to removal pursuant to INA § 237(a)(2)(A)(iii), as an alien who has been convicted of an
aggravated felony as defined in INA § 101(a)(43)(A) (murder, rape or sexual abuse of a
minor). Id. at 8-9. Petitioner was taken into DHS custody pursuant to an arrest warrant,
also issued on July 16, 2012 (id. at 1), and executed by DHS officers at petitioner’s
residence in Rochester, New York, on July 26, 2012. Id. at 13.
On September 5, 2012, an IJ Steven J. Connelly denied petitioner’s request for
change in custody status and determined that petitioner was subject to mandatory
detention pursuant to the provisions of INA § 236(c). Id. at 4. 15. On September 25, 2012,
IJ Connelly denied petitioner’s further requests for relief and ordered petitioner removed
from the United States to Jamaica. Id. at 3. This removal order became final on February
12, 2013, when the BIA dismissed petitioner’s appeal. Id. at 2, 36.
Meanwhile, petitioner filed this action on December 12, 2012, seeking habeas
corpus relief pursuant to 28 U.S.C. § 2241 on the ground that his detention in DHS custody
since July 26, 2012, without conducting an individualized bond hearing pursuant to INA
§ 236(a), violates his substantive due process rights. See Item 1. Upon full consideration
-4-
of the matters set forth in the submissions on file, and for the reasons that follow, the
petition is denied.
DISCUSSION
Petitioner challenges his detention in the custody of DHS, pending removal to
Jamaica, 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)). 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.
INA § 236 provides, in pertinent parts, as follows:
(a) Arrest, detention, and release.
On a warrant issued by the Attorney General, an alien may be
arrested and detained pending a decision on whether the alien
is to be removed from the United States . . . . Except as
provided in subsection(c). . . and pending such decision, the
Attorney General–
(1)
(2)
may continue to detain the arrested alien; and
may release the alien on–
(A) bond of at least $1,500 with security
approved by, and containing conditions
prescribed by the Attorney General; or
(B) conditional parole. . . .
-5-
(c) Detention of criminal aliens.
The Attorney General shall take into custody any alien who ...
is deportable by reason of having committed any offense
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(a)(1)-(2) and(c)(1)(B).
As discussed above, at the time petitioner filed this action he was detained under
the authority of INA § 236(c), which requires detention of “criminal aliens” pending a
determination of the alien’s removability based upon a conviction of an aggravated felony.
The Supreme Court has held that mandatory detention of criminal aliens pursuant to
Section 1226(c) during the period prior to the pre-final order of removal without an
individualized hearing is constitutionally permissible as part of the removal process.
Demore v. Kim, 538 U.S. 510, 531 (2003); see Persaud v. Holder, 2011 WL 5326465, at
*2 (W.D.N.Y. Nov. 3, 2011) (detention pursuant to INA § 236(c) during period prior to
pre-final order of removal did not violate due process; citing Demore v. Kim, 538 U.S. 510,
531 (2003)); Gomez v. Napolitano, 2011 WL 2224768, at *3 (S.D.N.Y. May 31, 2011)
(“Permitting certain individuals to avoid mandatory detention simply because ICE fails to
immediately take them into immigration custody runs counter to … congressional intent”
underlying enactment of mandatory detention provision of § 236(c)).
Petitioner’s mandatory detention pursuant to INA § 236(c) continued until February
12, 2013, when the BIA dismissed petitioner’s appeal of the IJ’s September 2012 order of
-6-
removal. See 8 C.F.R. § 1241.1(b) (order of removal becomes final upon dismissal of
appeal by the BIA). Thereafter, petitioner’s detention has been governed by 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 post-final-removal order period is likewise
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 aliens (like petitioner) found removable based on a conviction for an aggravated felony
beyond the expiration of the ninety-day removal period. INA § 241(a)(6).2
Accordingly, because petitioner’s detention pending removal is governed by INA
§ 241, and because petitioner’s mandatory detention during the 90-day post-final-removal
2
INA § 241(a)(6) provides in full as follows:
An alien ordered removed who is inadmissible under section 1182 of this title, removable
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).
-7-
order period (which commenced on February 12, 2013) will not expire until May 13, 2013,
his petition for habeas corpus relief pursuant to 28 U.S.C. § 2241 is premature, and 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
“there is no significant likelihood of removal in the reasonably foreseeable future.”
Zadvydas v. Davis, 533 U.S. 678, 701 (2001); see Andreenko v. Holder, 2012 WL
4210286, at *5 (W.D.N.Y. Sept. 18, 2012).
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 1, 2013
p:\pending\2012\12-1233.2241.apr29.2013
-8-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?