Gobin v. Holder et al

Filing 7

-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 detentio n 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 7/17/2013. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

POORANDEO GOBIN, A41-603-310,
Petitioner,
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13-CV-241-JTC

ERIC H. HOLDER, Attorney General
of the United States;
JANET NAPOLITANO, Secretary of
United States Department 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;
and
TODD TRYON, Facility Director, Buffalo
Federal Detention Facility,
Respondents.

INTRODUCTION
Petitioner Poorandeo Gobin, 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 this court’s order entered March 28, 2013 (Item 3), respondent1 has submitted
an answer and return (Item 5), along with an accompanying memorandum of law (Item 6),
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, New York, on or about October 26, 1987, as a lawful permanent resident. See
Item 5-2 (Exh. A, attached to Declaration of DHS Deportation Officer Juanita Payan, Item
5-1), pp. 2, 4. DHS records reflect that petitioner was convicted of the following criminal
offenses while present in the United States:
1.

On or about April 19, 1995, petitioner was convicted of Attempted

Criminal Contempt (2 counts).
2.

On or about January 12, 2010, petitioner was convicted in New York

State Supreme Court, Queens County, on a plea to the charge of Attempted
Burglary in the 2nd Degree: Illegal Entry - Dwelling, a Class D Felony under
N.Y. Penal Law § 110-140.25(2). He was sentenced to a three-year term of
imprisonment and two years of post-release supervision.2
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).
2

Petitioner filed a motion pursuant to New York Criminal Procedure Law (“NYCPL”) § 440.20
seeking to vacate his judgment of conviction and sentence on the ground that his plea subjected him to
deportation, amounting to cruel and unusual punishment in violation of the Eighth Amendment. This
motion was denied by Acting State Supreme Court Justice Dorothy Chin-Brandt in a Decision and Order
dated December 5, 2012 (see Item 5-2, pp. 23-27). Petitioner’s motion for leave to appeal the denial of

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See Item 5-2, pp. 8, 16, 18, 24.
On May 12, 2010, while incarcerated at the Mid-State Correctional Facility in Marcy,
New York, in the custody of the New York State Department of Correctional Services
(“DOCS,” reorganized in 2011 and renamed the Department of Corrections and
Community Supervision (“DOCCS”)), petitioner was served with a Notice to Appear for
Removal Proceedings under Section 240 of the Immigration and Nationality Act (“INA”).
Id. at 16-17. The Notice to Appear charged petitioner with being removable from the
United States 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)(G) (theft
offense or burglary offense for which the term of imprisonment at least 1 year was
imposed), a law relating to a theft offense. Id. at 16-17. On July 14, 2010, DHS served
petitioner with Additional Charges of Inadmissibility/Deportability (Form I-261), charging
him with being removable pursuant to INA § 237(a)(2)(A)(iii), as an alien who had been
convicted of an attempt or conspiracy to commit an aggravated felony, as described in INA
§ 101(a)(43)(U). See id. at 14-15.
On August 4, 2011, an immigration judge (“IJ”) ordered petitioner removed from the
United States to Guyana. See id. at 8. Petitioner appealed the IJ’s order to the Board of
Immigration Appeals (“BIA”), and the removal order became final on December 12, 2011,
when the BIA dismissed the appeal. Id. at 13.

his § 440.20 motion remains pending with the Appellate Division, Second Department. Id. at 28.
Petitioner also filed a separate motion under NYCPL § 440.10(h) to vacate his conviction on grounds that
his plea was not entered knowingly and voluntarily; this motion was denied by Judge Chin-Brandt in a
Decision and Order dated April 5, 2013. Id. at 29-33.

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On July 27, 2012, upon his release from the custody of DOCCS, petitioner was
received into DHS custody and taken to the Buffalo Federal Detention Facility in Batavia,
New York. Id. at 8, 20. On July 31, 2012, petitioner was served with a formal Warning for
Failure to Depart (Form I-229(a)), along with an instruction sheet listing actions to be
completed within 30 days to assist DHS in obtaining a travel document for his removal from
the United States. Id. at 11-12. 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
or refusal to comply with the requirements for removal may result in the extension of the
removal period and subject him to further detention. Id.
On August 2, 2012, DHS sent a presentation packet to the Embassy of Guyana
(“Embassy”) in Washington, D.C., requesting that a travel document be issued for
petitioner’s removal. Id. at 20- 22. According to DHS records, the deportation officer
assigned to petitioner’s case spoke to an Embassy official on August 20, 2012, and was
advised that Guyana will not be issuing travel documents until the matters pertaining to
petitioner’s NYCPL § 440 motion to vacate his criminal conviction have been resolved.
See Item 5-1, ¶ 14.
The submissions on file further reveal that, in accordance with immigration
regulations, DHS conducted a 90-day review of petitioner’s custody status in October 2012.
Item 5-2, pp. 8-10. Following completion of the review, petitioner was notified that DHS
had determined to continue his detention, based upon the totality of information available
in petitioner’s file indicating that he would pose a threat to the community and a risk of flight

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if he were to be released from custody. Id. at 9. Further reviews of petitioner’s custody
status have been conducted by DHS Headquarters Post-Order Custody Review Unit
(“HQPOCRU”) in January and April, 2013, following which petitioner was notified that DHS
determined to continue his detention in DHS custody. Id. 2-5.
Meanwhile, on March 5, 2013, petitioner filed this action seeking habeas corpus
relief pursuant to 28 U.S.C. § 2241 on the ground that his continued detention in postremoval-order custody is unlawful since it has exceeded the presumptively reasonable sixmonth 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
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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 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 ….” INA § 241(a)(6).3

3

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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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
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.”
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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
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.”).
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As set forth above, in this case petitioner’ post-removal-order detention began on
July 27, 2012, when he was taken into DHS custody upon his release from the custody of
DOCCS. As an alien under a final order of removal, he was subject to mandatory
detention for the 90-day removal period pursuant to INA § 241(a). Thereafter, his
continued detention has been authorized by INA § 241(a)(6), since he is a criminal alien
determined by DHS upon custody status review to pose a risk to the community.
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 Jordan in the reasonably foreseeable future. He simply alleges that the
Embassy “ha[s] not issued any travel documents and there is no certainty as to when, if
ever, such papers will be issued.” Item 1, ¶ 16. However, as discussed above, the request

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for a travel document for petitioner remains pending with the Embassy, and there is nothing
in the record before the court to indicate that Guyanese authorities are inclined to deny the
request.
To the contrary, the information in the submissions on file indicates that an Embassy
official advised DHS in April 2013 that a travel document was being prepared for
petitioner’s removal, and a meeting had been scheduled to finalize and sign the document.
However, in a subsequent communication in May 2013, the Embassy official advised DHS
that, pursuant to an internal memorandum of understanding, Guyana would not issue a
travel document for petitioner while his litigation in the United States – i.e., his motion for
leave to appeal from the denial of the § 440.20 motion challenging his state court
conviction and sentence, and the present habeas petition challenging the length of his
post-removal-order detention – remains pending. See Item 5-1, ¶ 20.
Several cases within the Second Circuit have held that, when the detention
challenged by the habeas petition has been prolonged by the 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.
See, e.g., Doherty v. Thornburgh, 943 F.2d 204, 211 (2d Cir. 1991) (refusing to find eightyear 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”

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which “acted to prevent his removal until the Second Circuit issued its mandate”). Although
Doherty and Dor were decided prior to the Supreme Court’s determination of a
“presumptively reasonable” standard in Zadvydas, those cases have been cited with
approval by the Second Circuit in post-Zadvydas decisions. See, e.g., Abimbola v Ridge,
181 F. App’x 97, 99 (2d Cir. 2006) (petitioner’s consistent pattern of seeking to delay
removal by filing appeals and petitions for reconsideration amounted to a “self-inflicted
wound” precluding a finding of due process violation); Sanusi v. I.N.S., 100 F. App’x 49,
51 (2d Cir. 2004) (“The duration of [petitioner’s] detention–approximately six years to the
date–is extremely regrettable. Nevertheless, because the detention has been prolonged
primarily by [petitioner]’s pursuit of final judicial review of his claims, we cannot say that this
duration in itself violates due process.”).
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; Item 5-1, ¶ 21. These circumstances provide a reasonable
basis for DHS’s expectation that the verification required for the issuance of a travel
document by the Guyanese government can be accomplished within the reasonably
foreseeable future following resolution of petitioner’s pending request for leave to appeal
the denial of his § 440.20 motion, after which time the necessary travel arrangements may
be made for petitioner’s release from custody and his repatriation to Guyana.
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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, ¶¶ 16,
18, 22, 29. However, 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 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)

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(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
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.

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.

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So ordered.

\s\ John T. Curtin
JOHN T. CURTIN
United States District Judge
Dated: July 17, 2013
p:\pending\2013\13-241.2241.july16.2013

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