Jones v. Holder et al
Filing
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-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 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 6/12/2013. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HERALD A. JONES, A24-505-334,
Petitioner,
-v-
13-CV-206-JTC
ERIC H. HOLDER, Attorney General
of the United States;
JANET NAPOLITANO, Secretary of Security
U.S. Department of Head of Homeland
Security;
MICHAEL PHILIPS, Field Office Director for
Detention and Removal, Buffalo Field Office,
Bureau of Immigration and Customs
Enforcement;
DEPARTMENT OF HOMELAND SECURITY;
TODD TRYON, Facility Director, Buffalo Federal
Detention Facility,
Respondents.
INTRODUCTION
Petitioner Herald Jones, 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, Immigration and Customs Enforcement (collectively, “DHS”), pending
the execution of a final immigration order of removal issued against him. Item 1. As
directed by the court’s order entered April 1, 2013 (Item 3), 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
section 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 5), along with an accompanying memorandum of law (Item 6), and
petitioner has submitted a reply and memorandum of law (Items 8,9).
For the reasons that follow, the petition is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner, a native and citizen of Jamaica, entered the United States at an unknown
place and on an unknown date, and was not admitted or paroled after an inspection by an
Immigration Officer. See Item 5-1 (“Payan Decl.”), ¶ 5; see also Item 1, ¶ 12. Petitioner
has the following criminal history:
On or about February 25, 1982, petitioner was convicted in New York State
Supreme Court, Kings County, of criminal possession of a firearm in the third
degree. He was sentenced to a one-year term of incarceration.
On or about November 3, 1983, petitioner was convicted in New York State
Supreme Court, Kings County, of robbery in the first degree, burglary in the
first degree, and robbery in the second degree. He was sentenced to a term
of incarceration of eight to sixteen years.
On or about March 19, 1998, petitioner was convicted in New York State
Supreme Court, Kings County, of criminal possession of a loaded firearm in
the third degree and two counts of criminal sale of a firearm in the third
degree. He was sentenced to a term of incarceration of six years to life.
See Payan Decl., ¶ 6.
On August 20, 1987, petitioner was served with an Order to Show Cause which
charged him with being deportable as an alien who is not in possession of a valid
unexpired immigrant visa, reentry permit, border crossing identification card, or other valid
entry document. See Item 5-2 (“Exh. A”), p. 13. On October 5, 1992, an Immigration
Judge (“IJ”) ordered petitioner’s removal from the United States to Jamaica. Payan Decl.,
¶ 8; Exh. A, p. 12. On July 24, 2012, upon his release from custody of the New York State
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Department of Corrections and Community Supervision (“DOCCS”), petitioner was
received into DHS custody. Id., ¶ 9.
According to DHS records, on July 25 2012, DHS sent a presentation packet to the
Consulate General of Jamaica, (the “Consulate”) in New York, New York, requesting that
a travel document be issued for petitioner’s removal. Payan Decl., ¶ 10; Exh. A, p. 15. On
August 21, 2012, petitioner was interviewed by telephone by a representative of the
Consulate. Payan Decl., ¶ 12.
In accordance with regulations, DHS reviewed petitioner’s custody status in October
2012.
On October 22, 2012, petitioner was notified that, based on the totality of
information available, DHS had determined that he would be a threat to the community if
released, and detention would be continued pending removal. Payan Decl., ¶ 14; Exh. A,
pp. 6-8. On January 24, 2013, a panel was convened at the Buffalo Federal Detention
Facility to conduct a further review of petitioner’s custody status, including an in-person
interview. Payan Decl., ¶ 15. Following completion of the file review and interview,
petitioner was notified on February 12, 2013, that DHS had determined to continue his
detention in DHS custody. Payan Decl., ¶ 16; Exh. A, pp. 4-5. A further review of
petitioner’s custody status was conducted in April 2013 and petitioner was advised that
DHS determined to continue his detention. Payan Decl., ¶ 17; Exh. A, pp. 2-3.
DHS records indicate that DHS representatives have attempted to contact or have
contacted the Consulate on at least 15 occasions from September 2012 to the present.
See Payan Decl., ¶ 13.
A file note entry dated April 23, 2013 indicates that a
representative of the Consulate reported that the Consulate was waiting for petitioner’s
sister to return a verification form in order to establish his identity. Id. At the present time,
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the request for a travel document is pending with the Consulate. Id., ¶ 18.
Petitioner filed this action on February 25, 2013, seeking habeas corpus relief
pursuant to 28 U.S.C. § 2241 on the ground that his continued detention in post-removalorder custody 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).
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 the
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
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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; or
(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 8 U.S.C.
§ 1231(a)(2) (“During the removal period, the Attorney General shall detain the alien.”).
The statute also authorizes the Attorney General to continue detention of criminal aliens
– i.e., aliens ordered removed due to conviction of a crime (like petitioner here) – beyond
the expiration of the ninety-day removal period if it is determined that the alien “is a risk to
the community or unlikely to comply with the order of removal ….” 8 U.S.C. § 1231(a)(6).2
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
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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).
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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
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.”
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.”
§ 241.13(d)(2).
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8 C.F.R.
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
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 July 24,
2012, upon his release from state custody. See Payan Decl., ¶ 9. He was ordered
removed from the United States to Jamaica in an order dated October 5, 1992, an order
he did not appeal. Id., ¶ 8; Exh. A, pp. 6, 12. As an alien under a final order of removal,
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petitioner’s detention was mandatory for the ninety-day removal period pursuant to INA
§ 241(a). Thereafter, upon determining that petitioner posed a significant threat to the
safety and security of the community, DHS was authorized under INA § 241(a)(6) to
continue the detention beyond the expiration of the ninety-day period for “a period
reasonably necessary to secure removal.” Zadvydas, 533 U.S. at 699-700.
Under Zadvydas, the first six months of detention following a final removal order are
“presumptively reasonable.” Zadvydas, 533 U.S. at 701. Once the six-month period has
passed, the burden shifts to the alien detainee to “provide[ ] good reason to believe that
there is no significant likelihood of removal in the reasonably foreseeable future.” Id. Only
if the alien makes this showing does the burden shift back to the government, which “must
respond with evidence sufficient to rebut” the alien's showing that there is no significant
likelihood that he or she will be deported in the reasonably foreseeable future. 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
can be removed to Jamaica in the reasonably foreseeable future.
There are no
institutional barriers to petitioner’s removal to his native country and Jamaica has not
refused to accept him. The available records reflect that there has been regular and
continuing communications between DHS and the Consulate (Payan Decl., ¶ 13), and
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there is nothing to be found in the submissions before the court that would indicate a
likelihood that Jamaican authorities are inclined to deny the request for a travel document.
To the contrary, the available evidence shows that in recent years, DHS has successfully
repatriated thousands of aliens to Jamaica. See id. at ¶ 19.3 In petitioner’s case, the delay
appears to result, at least in part, from petitioner’s illegal entry into the United States and
the process of verifying his identity. Since July 2012, when petitioner was received into
DHS custody, the process of obtaining a travel document has been diligently pursued by
both DHS and Jamaican authorities. Id., ¶¶ 12-13. DHS records indicate Jamaican
authorities are awaiting verification by petitioner’s sister and that the case has been
forwarded to Kingston to establish petitioner’s identity. Id., ¶ 13. These circumstances
provide a reasonable basis for DHS’s expectation that the verification required for the
issuance of a travel document will be accomplished in the reasonably foreseeable future,
after which time the necessary travel arrangements may be made for petitioner’s release
from custody and his repatriation to Jamaica.
Significantly, petitioner has provided no evidence to contradict DHS’s expectation
that the issuance of a travel document will be accomplished in the reasonably foreseeable
future.
Instead, petitioner relies on the fact that his detention has exceeded the
presumptively reasonable six-month period established in Zadvydas. Several cases
decided within this district have found the habeas petitioner’s assertion as to the
unforeseeability of removal, supported only by the mere passage of time, insufficient to
3
For example, DHS statistical reports show that in fiscal year (“FY”) 2009, a total of 1,664 aliens
were repatriated to Jamaica; in FY 2010, 1,487 aliens were repatriated to Jamaica; and in FY 2011, 1,474
aliens were repatriated to Jamaica. Item 5-1, ¶ 19 (citing DHS Yearbook of Immigration Statistics: 2011,
Table 41: http://www.dhs.gov/yearbook-immigration-statistics-2011-3).
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meet the petitioner’s burden to demonstrate no significant likelihood of removal under the
Supreme Court’s holding in Zadvydas. See, e.g., Khaleque v. Dep't of Homeland Sec.,
2009 WL 81318, at *4 (W.D.N.Y. January 9, 2009) (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. March 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. October 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.
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.4
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
removal is no longer reasonably foreseeable. See Andreenko v. Holder, 2012 WL
4210286, at *5 (W.D.N.Y. September 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: June 12, 2013
p:\pending\2013\13-206.june6.2013
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To the extent that petitioner seeks an order prohibiting the respondents from removing him from
the jurisdiction of this court to another detention facility, this court lacks jurisdiction to impose such an
order as decisions regarding the place of confinement of aliens subject to removal orders are within the
discretion of the Attorney General. See Rady v. Ashcroft, 193 F.Supp.2d 454, 456-57 (D.Conn. 2002); 8
U.S.C. §§ 1231(g)(1), 1252(a)(2)(B)(ii).
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