Newell v. Holder et al
-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 9/25/2013. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL ST. AUBYN NEWELL, A43-730-694,
ERIC H. HOLDER, Jr., Attorney General
of the United States,
WALTER INGRAM, Office of Enforcement
and Removal Operations Post Order Custody
Review Unit Chief, Washington DC
MICHAEL PHILIPS, Field Office Director,
Office of Enforcement and Removal
Operations, Buffalo Field Office,
Department of Homeland Security
Bureau of Immigration and Customs
SEAN CALLAGHER, Designated Field Office
Director, ERO, Buffalo Federal Detention
TODD TRYON, Assistant Field Office Director
Buffalo Federal Detention Facility,
MR. SCHRADER, Supervisory Detention and
Deportation Officer, Buffalo Federal
OFFICER GUNTHER, Deportation Officer,
Buffalo Federal Detention Facility,
Petitioner, Michael St. Aubyn Newell, 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 on May 15, 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, and petitioner has submitted a reply (Item 6).
For the reasons that follow, the petition is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner, a native and citizen of Jamaica, was admitted to the United States as a
lawful permanent resident at New York, New York, on or about March 2, 1993. See Item
4-1 (“Payan Decl.”), ¶ 5.
According to DHS records, petitioner was convicted of the following state law
On or about January 21, 2004, petitioner was convicted in the Circuit Court
of the City of Norfolk, Virginia, of Possession of less than five (5) pounds of
marijuana with intent to distribute, in violation of Section 18.2-248-1 of the
Virginia Code. He was sentenced to 5 years.
On or about September 2, 2005, petitioner was convicted of Possession of
a Controlled Substance, marijuana, with intent to distribute, in violation of
Section 5.602 of the Maryland Code.
He was sentenced to 2 years
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).
Payan Decl., ¶ 6; Item 4-2 (“Exh. A”), pp. 14, 16, 21.
Based on his criminal conviction in Virginia, petitioner was served with a Notice to
Appear (“NTA”) dated April 25, 2011, which charged petitioner with being removable from
the United States pursuant to Immigration and Nationality Act (“INA”) § 237(a)(2)(B)(i), as
an alien convicted of a controlled substance offense, and 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)943)(A), an offense relating to trafficking in a controlled substance. See
Exh. A, pp. 16-18.
On November 17, 2011, petitioner was received into DHS custody pursuant to a
Warrant of Arrest. Payan Decl., ¶ 8; Exh. A, pp. 19-22. On December 7, 2011, petitioner
was served with additional charges of inadmissibility/deportation related to his Maryland
criminal conviction. Exh. A, pp. 14-15. On May 25, 2012, an Immigration Judge (“IJ”)
ordered petitioner’s removal from the United States to Jamaica. Id., pp. 12-13. Petitioner
appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”), and the order of
removal became final on September 27, 2012, when the BIA dismissed petitioner’s appeal.
Id., p. 11.
On October 11, 2012 and October 23, 2012, DHS served petitioner with a formal
Warning for Failure to Depart (Form I-229(a)), along with an instruction sheet listing actions
that petitioner was required to complete within 30 days to assist in obtaining a travel
document for his removal from the United States. Exh. A, pp. 7-10. The warning form
advised petitioner 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 October 15, 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. Exh. A, pp. 23-28. Petitioner was interviewed by telephone
by a Consulate representative on December 4, 2012. Payan Decl., ¶ 15. DHS records
indicate that DHS representatives contacted the Consulate on eleven occasions between
October 16, 2012 and February 21, 2013 regarding the status of petitioner’s travel
document. Id., ¶ 14.
In accordance with immigration regulations, DHS conducted a review of petitioner’s
custody status in December 2012. On or about December 18, 2012, petitioner was notified
that DHS determined to continue his detention. Exhibit A, p. 6. On March 7, 2013, DHS
was notified that the Consulate had approved the issuance of a travel document for
petitioner pending the receipt of a travel itinerary. Payan Decl., ¶ 17. Thereafter, DHS
made travel arrangements for petitioner to be removed from the United States to Jamaica
on March 28, 2012. Id. The travel document was issued March 8, 2013. Id., ¶ 18.
On March 18, 2013, petitioner filed a petition in the Second Circuit Court of Appeals
seeking review of the BIA’s denial of his appeal from the removal order, along with a
motion for a stay of removal. Exh. A, pp. 32-34. On April 1, 2013, the government filed
a motion to dismiss the petition and a motion in opposition to the stay of removal. Payan
Decl., ¶ 22. These motions are pending before the Second Circuit. Id.
An additional review of petitioner’s custody status was conducted in March 2013,
including an in-person interview of petitioner at the Buffalo Federal Detention Facility in
Batavia, New York. Exh. A, pp. 4-5. On March 28, 2013, petitioner was notified that DHS
determined to continue his detention. Exh. A, pp. 2-3.
On May 1, 2013, petitioner filed a motion with the BIA to reopen his immigration
removal proceedings. That motion was denied on June 18, 2013. Payan Decl., ¶ 23.
Petitioner filed this action on May 7, 2013, seeking habeas corpus relief pursuant to 28
U.S.C. § 2241 on the ground that his continued detention in DHS custody since September
27, 2012, when the Immigration Judge’s order of removal became final, is unlawful
because 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.
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
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
(i) The date the order of removal becomes administratively
(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
(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 (like
petitioner) 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).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).
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.
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.”
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
As set forth above, in this case petitioner was received into DHS custody on
November 17, 2011 pursuant to a Warrant of Arrest pending completion of immigration
removal proceedings, as authorized by INA § 236.3 See Payan Decl., ¶ 8. This detention
continued until September 27, 2012, when the IJ’s order of removal became final upon the
BIA’s dismissal of petitioner’s appeal. See 8 C.F.R. § 1241.1(a) (order of removal
becomes final upon dismissal of appeal by BIA).
After the order of removal became final, petitioner’s detention was authorized by INA
§ 241(a), and the removal period commenced. DHS promptly secured a travel document
for petitioner’s removal, and made arrangements for petitioner to be removed from the
United States to Jamaica on March 28, 2013. Payan Decl., ¶¶ 13-14, 17-18. Then, on
March 18, 2013, petitioner filed his petition in the Second Circuit for review of the BIA’s
dismissal of his appeal from the removal order, along with a motion for a stay of removal
pending the circuit court’s ruling. Id. at ¶ 19.
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.
3, 2011) (filing of petition for circuit court review of final order of removal along with motion
Petitioner has not challenged his pre-removal order detention under INA § 236. See Persaud v.
Holder, 2011 WL 5326465, at *2 (W.D.N.Y. Nov. 3, 2011) (detention pursuant to INA § 236 during period
prior to pre-final order of removal did not violate due process; citing Demore v. Kim, 538 U.S. 510, 531
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).
The court notes that, in this case, petitioner waited nearly six months, until travel
arrangements had been made and his removal was imminent, to file a petition for review
in the Second Circuit. Although no reported post-Zadvydas Second Circuit case has
directly addressed continued detention arising from the application of the forbearance
policy, there is ample case law suggesting that a petitioner’s detention that has been
prolonged primarily by the pursuit of judicial remedies does not generally violate due
process. See 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)); Sanusi v. I.N.S., 100
F. App’x 49, 51 (2d Cir. 2004) (six-year detention, prolonged primarily by petitioner’s pursuit
of judicial review, does not in itself violate due process); Luna-Aponte v. Holder, 743
F.Supp.2d at 199-200 (detention in excess of three years did not violate due process, as
delay was not indefinite and was not attributable to government, but rather was result of
petitioner’s litigation strategy).
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. See 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”).
Alternatively, 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
can be removed to Jamaica in the reasonably foreseeable future. As discussed above,
DHS records show that the Consulate has, in fact, issued a travel document for petitioner,
and travel arrangements for his removal were made by DHS but were cancelled when the
petition for review and request for stay of removal were filed with the Second Circuit.
Payan Decl., ¶¶ 17-19.
In addition, the available statistical evidence reveals that in recent years, DHS has
successfully repatriated significant numbers of aliens to Jamaica, indicating that there are
no apparent institutional barriers to petitioner’s removal. For example, DHS 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. See DHS Yearbook of Immigration Statistics: 2011, Table 41:
http://www.dhs.gov/yearbook-immigration-statistics-2011-3. This evidence, considered
along with the circumstances of the DHS’s efforts prior to forbearance, provide a
reasonable basis for DHS’s expectation that removal can be accomplished within the
reasonably foreseeable future following final resolution of petitioner’s request for review by
the Second Circuit, after which time the necessary travel arrangements may be completed
for petitioner’s release from DHS custody and his repatriation to Jamaica.
Significantly, petitioner has provided no evidence to contradict this expectation, or
to otherwise establish his compliance with the requirements of the DHS regulations
Instead, petitioner merely states that his removal cannot be
accomplished in the reasonably foreseeable future due to the pending petition for review
before the Second Circuit. 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)
(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, 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.
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.
The Clerk of the Court is directed to enter judgment in favor of respondent, and to
close the case.
_____\s\ John T. Curtin______
JOHN T. CURTIN
United States District Judge
Dated: September 25, 2013
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