Matthews

Filing 10

-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 9/18/2013. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

GERARD PATRICK MATHEWS,
Petitioner,
-v-

13-CV-339-JTC

MICHAEL T. PHILIPS, Field Office Director,
Buffalo, NY Field Office of U.S. Immigration
and Customs Enforcement,
Enforcement and Removal Operations,
TODD L. TRYON, Assistant Field Office Director,
Buffalo, NY Field Office of U.S. Immigration
and Customs Enforcement,
Enforcement and Removal Operations,
JOHN T. MORTON, Secretary of U.S.
Customs and Immigration Enforcement,
JANET NAPOLITANO, Secretary of
Homeland Security,
ERIC H. HOLDER, Jr., Attorney General
of the United States,
DEPARTMENT OF HOMELAND SECURITY,
Respondents.

INTRODUCTION
Petitioner Gerard Patrick Mathews, an alien under a final order of removal from the
United States, has filed this 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 April 15, 2013 (Item 3), respondent1 has submitted
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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

an answer and return (Item 7), along with an accompanying memorandum of law (Item 8),
in opposition to the petition. In response, petitioner has filed a reply/response (Item 9).
For the reasons that follow, the petition is denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner, a native and citizen of Ireland, was admitted to the United States at New
York, New York on or about September 24, 1989, as a lawful permanent resident. See
Item 7-1 (Payan Decl.), ¶ 5; Item 1, ¶ 11. According to DHS records, petitioner has the
following criminal history:
-On or about December 3, 1990, petitioner was convicted in Yonkers City
Court, State of New York, of Public Lewdness, in violation of N.Y. Penal Law
§ 245.00. He was granted a conditional discharge and was fined $150.
-On or about June 19, 1991, petitioner was convicted, upon verdict after trial,
in the Pelham Manor Village Court, State of New York, of Public Lewdness,
in violation of N.Y. Penal Law § 245.00. He was sentenced to one year
probation and fined $500.
-On or about September 16, 1994, petitioner was convicted in Yonkers City
Court, State of New York, of Public Lewdness, in violation of N.Y. Penal Law
§ 245.00. He was sentenced to one year probation and 60 days
incarceration.
-On or about August 5, 1997, petitioner was convicted in Yonkers City Court,
State of New York, of Public Lewdness, in violation of N.Y. Penal Law
§ 245.00. He was sentenced to 90 days incarceration.
-On or about August 18, 1998, petitioner was convicted in Yonkers City
Court, State of New York, of Public Lewdness, in violation of N.Y. Penal Law
§ 245.00. He was sentenced to one year probation and 60 days
incarceration.

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).

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-On or about June 1, 1999, petitioner was convicted in Yonkers City Court,
State of New York, of Public Lewdness, in violation of N.Y. Penal Law
§ 245.00. He was sentenced to 90 days incarceration.
-On or about August 18, 1999, petitioner was convicted in Yonkers City
Court, State of New York, of assault in the 3rd degree, in violation of N.Y.
Penal Law § 120.00. He was sentenced to three years probation.
-On or about February 15, 2002, petitioner was convicted in Yonkers City
Court, State of New York, of an Act in a Manner to Injure a Child less than
17 years old, in violation of N.Y. Penal Law § 260.10-01. He was sentenced
to six months incarceration and an order of protection was issued.
-On or about April 1, 2003, petitioner was convicted in Yonkers City Court,
State of New York, of an Act in a Manner to Injure a Child less than 17 years
old, in violation of N.Y. Penal Law § 260.10-01 and Public Lewdness, in
violation of N.Y. Penal Law § 245.00. He was sentenced to a one year term
of incarceration and an order of protection was issued.
-On or about August 25, 2004, petitioner was convicted in Yonkers City
Court, State of New York, of Public Lewdness, in violation of N.Y. Penal Law
§ 245.00. He was granted a conditional discharge and was fined $500.
-On or about July 5, 2011, petitioner was convicted in Yonkers City Court,
State of New York, of Public Lewdness, in violation of N.Y. Penal Law
§ 245.00. He was granted a conditional discharge and an order of protection
was issued.
-On or about December 14, 2011, petitioner was convicted in the Bronx
County Supreme Court, State of New York, of Public Lewdness, in violation
of N.Y. Penal Law § 245.00(b). He was sentenced to 90 days incarceration
and an order of protection was issued.
-On or about December 14, 2011, petitioner was convicted in the Bronx
County Supreme Court, State of New York, of Resisting Arrest, in violation
of N.Y. Penal Law § 205.30 and Public Lewdness, in violation of N.Y. Penal
Law § 245.00(a). He was sentenced to 30 days incarceration for Resisting
Arrest, 90 days incarceration for Public Lewdness, and an order of protection
was issued.
-On or about December 22, 2011, petitioner was convicted in the Yonkers
City Court, State of New York, of Public Lewdness, in violation of N.Y. Penal
Law § 245.00. He was sentenced to 75 days incarceration.
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See Payan Decl., ¶ 6.
On October 7, 2011, petitioner was encountered by DHS officers at the Westchester
County, New York Jail. After his immigration status was verified, petitioner was placed in
removal proceedings by a Notice to Appear, dated December 1, 2011, which charged him
with being subject to removal from the United States for the violation of the Immigration
and Nationality Act (“INA”)–specifically, section 237(a)(2)(E)(I), 8 U.S.C. § 1227(a)(2)(A)(I)
(conviction of a crime of domestic violence, stalking, child abuse, child neglect, or child
abandonment). Payan Decl., ¶ 7; Item 7-2 (“Exh. A”), pp. 8-10. On December 28, 2011,
petitioner was placed in DHS custody pursuant to a Warrant for Arrest of Alien. Exh. A,
p. 11.
On December 18, 2011, an immigration judge (“IJ”) granted petitioner’s request for
adjustment of status to lawful permanent resident pursuant to INA § 245(a), 8 U.S.C.
§ 1255(a), and for a waiver of inadmissibility pursuant to INA § 212(h), 8 U.S.C. § 1182(h).
Exh A, pp. 6-7. DHS appealed the IJ’s order to the Board of Immigration Appeals (“BIA”).
On May 15, 2013, the BIA sustained the appeal and vacated the IJ’s decision. Exh. A, pp.
2-5. A Warrant of Removal/Deportation, dated May 20, 2013, states that petitioner is
subject to a final order of removal by virtue of the BIA determination. Id., p. 1.
On May 23, 2013, petitioner filed motions to reconsider and for an emergency stay
of removal with the BIA. Payan Decl., ¶ 11. Additionally, on May 23, 2013, petitioner filed
a petition in the Second Circuit Court of Appeals for review of the BIA order. Item 9-1. On
May 24, 2013, DHS sent a presentation packet to the Consulate General of Ireland (the
“Consulate”) in New York, New York, requesting that a travel document be issued for
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petitioner’s removal. Exh. A, p. 14. On June 27, 2013, petitioner filed a motion for a stay
of removal with the Second Circuit. Item 9-1. Petitioner’s motions are pending with the
BIA and the Second Circuit. He is currently held at the Buffalo Federal Detention Center
pending his removal from the United States. Payan Decl., ¶ 13.

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 v. Davis, 533 U.S. 678, 687 (2001) (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
argues that his detention is pursuant to section 236, as he has challenged the BIA’s order
by way of a motion to reconsider to the BIA and a petition for review in the Second Circuit.
The government contends that the order of removal became final on May 15, 2013 and
that, thereafter, petitioner’s detention has been pursuant to section 241.
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Section 236 authorizes detention pending a decision on whether the alien is to be
removed from the United States. Under the circumstances presented, section 236 does
not govern petitioner’s detention. As petitioner was the subject of an administrative final
order of removal at the time he was detained on May 15, 2013, his detention has been
pursuant to section 241. See Leslie v. Herron, 2010 WL 4226561, *2 (W.D.N.Y. Oct. 26,
2010) (alien detained at the time of final order of removal is subject to detention pursuant
to section 241). INA § 241(a) 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). Here, the removal order is under judicial review, but no court has
ordered a stay of removal. Thus the removal period commenced on May 15, 2013, the
date of the final order of removal, and expired on August 15, 2013, ninety days later.
Petitioner argues that, as he has filed a petition for review in the Second Circuit,
there is currently a de facto stay preventing DHS from executing the removal order. As
such, he argues, the ninety-day removal period cannot have commenced. In fact, the filing
of a petition for review of the final order of removal, accompanied by a motion for a 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
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removal of an alien while he or she has a petition for review pending in the circuit court.
See Persaud v. Holder, 2011 WL 5326465, *1 (W.D.N.Y. Nov. 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, 191 (W.D.N.Y
2010) (“forbearance policy” prevents DHS from removing any alien who has requested a
stay of removal with a petition for review of immigration order of removal). However,
petitioner was detained on May 15, 2013, when the removal order became final, and the
ninety-day removal period commenced on that date. Petitioner’s subsequent filing of a
motion to reconsider to the BIA and a petition for review of the administrative order of
removal in the Second Circuit did not undo the fact that there was a final removal order in
place and that detention pursuant to section 241(a) had commenced.2
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.”).

Thus,

petitioner’s detention until August 15, 2013 was mandated by section 241. The statute
also authorizes the Attorney General to continue detention of criminal aliens–i.e., aliens
ordered removed due to conviction of a crime–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

2

To the extent that Luna-Aponte v. Holder, 743 F.Supp.2d 189 (W.D.N.Y. 2010) would suggest
that the application of the “forbearance policy” renders petitioner’s detention subject to section 236, this
court declines to follow it. See Leslie v. Herron, 2010 WL 4226561 (W.D.N.Y. Oct. 26, 2010) (detention of
alien who is subject to administrative final removal order is governed by section 241 despite application of
“forbearance policy”); D’Alessandro v. Mukasey, 628 F.Supp.2d 368 (W.D.N.Y. 2009) (parties agreed
detention was pursuant to section 241 despite application of “forbearance policy”).
3

INA § 241(a)(6) provides in full as follows:

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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.
As set forth above, in this case petitioner was received into DHS custody on
December 28, 2011, pursuant to a Warrant of Arrest of Alien, for detention pending
completion of immigration removal proceedings as authorized by INA § 236. See Payan

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).

8

Decl., ¶ 8. This detention continued until May 15, 2013, when the BIA sustained the DHS
appeal from the IJ’s order granting petitioner’s request for relief, and the order of removal
became final. At that time, petitioner’s detention was authorized by INA § 241(a), and the
removal period commenced. DHS promptly undertook efforts to secure a travel document
for petitioner’s removal to Ireland by sending a presentation package to the Consulate on
May 24, 2013. See Payan Decl., § 12; Exh. A, p. 25.
Under Zadvydas, petitioner’s detention under section 241 is considered
presumptively reasonable for a period of six months, or until November 15, 2013.
Accordingly, to the extent that the petitioner asserts a claim for release under Zadvydas,
such a claim is premature. Moreover, petitioner has asserted no facts to support a claim
under Zadvydas. 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 v. Ashcroft, 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”).

The petition sets forth no factual basis to

substantiate a belief that there is no significant likelihood he can be removed to Ireland in
the reasonably foreseeable future. As discussed above, DHS promptly commenced efforts
to secure travel documents for petitioner’s removal to Ireland. Additionally, in recent years,

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DHS has successfully repatriated hundreds of aliens to Ireland.4
Because the detention challenged by the habeas petition in this action is still
presumptively reasonable under Zadvydas, the duration of petitioner’s detention cannot
be found to constitute a violation of his rights under the due process clause of the Fifth
Amendment. Additionally, 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 v. Dep’t of Homeland Sec., 553 F.
Supp. 2d 301, 307 (W.D.N.Y. 2008).
It is further ordered that certification pursuant to 28 U.S.C. § 1915(a)(3) be entered

4

For example, DHS statistical reports show that in fiscal year (“FY”) 2009, a total of 129 aliens
were repatriated to Ireland; in FY 2010, 107 aliens were repatriated to Ireland; and in FY 2011, 58 aliens
were repatriated to Ireland. Payan Decl., ¶ 14 (citing DHS Yearbook of Immigration Statistics: 2011, Table
38: http://www.dhs.gov/files/statistics/publications/YrBk11En.shtm).

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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:

September 18, 2013

p:\pending\2012\13-339.sept9.2013

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