Ruiz-Ibanez 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 detenti on 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 11/6/2013. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RAUL RUIZ-IBANEZ, A36-964-665,
Petitioner,
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13-CV-553-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; and
TODD TRYON, Facility Director, Buffalo
Federal Detention Facility,
Respondents.
INTRODUCTION
Petitioner Raul Ruiz-Ibanez, 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 June 10, 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 Panama, was admitted to the United States at
Miami, Florida, on or about July 13, 1982, with IR2 immigration status (Immediate
Relative–Unmarried Child Under 21 Years of Age of a U.S. Citizen). See Item 4-1
(Declaration of DHS Deportation Officer Juanita Payan), ¶ 5. DHS records reflect that
petitioner was convicted of the following criminal offenses while present in the United
States:
a.
On or about April 8,1995, petitioner was convicted in Syracuse, New York,
City Court of Criminal Possession of a Controlled Substance (cocaine) in the 7th Degree,
and was sentenced to 3 years probation.
b.
On or about March 19, 1996 , petitioner was convicted in Dewitt, New York,
Town Court of Petit Larceny, and was sentenced to 3 years probation. On January 28,
1997, petitioner was convicted of violating the conditions of probation, and was
re-sentenced to a 6-month term of incarceration.
c.
On or about March 10, 1997, petitioner was convicted in Syracuse City Court
of Criminal Possession of Marijuana in the 4th Degree, and was sentenced to 90 days
incarceration.
d.
On or about March 3, 1998, petitioner was convicted in Syracuse City Court
of Criminal Possession of Marijuana in the 5th Degree, and was granted a conditional
discharge.
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).
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e.
On or about October 6, 1999, petitioner was convicted in Onondaga, New
York, County Court of Criminal Possession of Marijuana in the 2nd Degree, and was
sentenced to 5 years probation. On August 7, 2002, petitioner was convicted of violating
the conditions of probation, and was re-sentenced to a 1-year term of incarceration.
f.
Also on August 7, 2002, petitioner was convicted in Onondaga County Court
of Criminal Possession of a Controlled Substance in the 3rd Degree (narcotic drug, with
intent to sell) and Robbery in the 1st Degree (display of apparent firearm). He was
sentenced to a term of incarceration of 8-16 years on the drug conviction, and a term of
incarceration of 8 years on the robbery conviction.
Id. at ¶ 6.
On July 3, 1998, petitioner was encountered by DHS officers at the Onondaga
County Jail and, upon verification of his immigration status, was served a Form I-862
Notice to Appear (“NTA”) charging him with being subject to removal from the United
States pursuant to Section 237(a)(2)(B)(I) of the Immigration and Nationality Act (“INA”) (8
U.S.C. § 1227(a)(2)(B)(I)), as an alien who has been convicted of a controlled substance
offense. Item 4-2 (Exh. A to Payan Decl.), pp. 19-21. On December 9, 1998, petitioner
was served with notice of an additional charge of being subject to removal 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)(B) (8 U.S.C. § 1101(a)(43)(B)). Id. at
18.
On July 16, 1999, an Immigration Judge (“IJ”) ordered petitioner removed from the
United States to Panama. Id. at 17. The IJ subsequently granted petitioner’s motion to
reopen his removal proceedings pending consideration of his application for cancellation
of removal pursuant to INA § 240A(a) (8 U.S.C. § 1229b(a)). Id. at 9. On December 3,
1999, an IJ determined that petitioner was ineligible to seek cancellation of removal due
to his aggravated felony conviction, and ordered petitioner removed from the United States
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to Panama. Id. Petitioner appealed this order to the Board of Immigration Appeals (“BIA”),
and on April 2, 2002, the BIA denied the appeal, thereby rendering the IJ’s removal order
final. Id.; see 8 C.F.R. § 1241.1(b) (order of removal becomes final upon BIA’s dismissal
of appeal).
On February 14, 2012, petitioner was received into DHS custody upon his release
from the custody of the New York State Department of Corrections and Community
Supervision (“NYSDOCCS”). Item 4-1, ¶ 12.
On February 17, 2012, DHS sent a
presentation packet to the Consulate General of Panama (“Consulate”) in New York City
requesting that a travel document be issued for petitioner’s removal. Id. at ¶ 14. On March
5, 2012, DHS served petitioner with a Warning for Failure to Depart (Form I-229(a)),
advising petitioner of penalties under the INA (including criminal sanctions and extension
of the removal period) for, among other things, failing to fully cooperate with the
administrative removal process or taking action designed to prevent or hamper his
departure from the United States. Item 4-2, p. 15. Petitioner also received an instruction
sheet listing actions required to be completed within 30 days to assist in obtaining a travel
document. Id. at 16; see also Item 4-1, ¶ 15.
On April 23, 2012, DHS received a travel document from the Panamanian Consulate
for petitioner’s removal from the United States to Panama, and DHS made arrangements
for petitioner to travel to Panama on May 15, 2012. Item 4-1, ¶ 17; Item 4-2, pp. 22-24.
However, on May 11, 2012, petitioner’s representative filed with the U.S. Immigration and
Citizenship Services (“USICS”), on petitioner’s behalf, an updated Form I-918 application
for a “U Nonimmigrant Visa” (victim of criminal activity; INA § 101(a)(15)(U)), and on May
15, 2012, USICS determined that petitioner is prima facie eligible for U Nonimmigrant
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classification. Item 4-1, ¶ 18. On June 11, 2012, DHS notified petitioner’s representative
that it had granted his request for a six-month stay of removal pending a final determination
of petitioner’s U Visa application. Item 4-2, pp. 13-14. Petitioner’s request for continuation
of the stay, which expired in December 2012, was denied by DHS by notice dated January
4, 3013. See id. at 11-12.
Meanwhile, on or about May 22, 2012, petitioner was notified that DHS had
reviewed his custody status and determined to continue his detention, based upon the
totality of information in petitioner’s file– particularly, his “extensive and violent criminal
history”– indicating that he would be a threat to the community if he were to be released
from custody. Id. at 8-10. Further custody status reviews have been conducted by DHS
at regular intervals, in accordance with immigration regulations. Following the completion
of each review, DHS notified petitioner that his detention would continue. Item 4-1, ¶ 23;
Item 4-2, pp. 2-5.
DHS records further reflect that on January 8, 2013, USICS denied petitioner’s
application for a U Nonimmigrant Visa. Item 4-1, ¶ 26. Petitioner’s appeal from this
determination remains pending with the USICS Administrative Appeals Office (“AAO”). Id.
Petitioner filed this action on May 24, 2013, seeking habeas corpus relief on the
ground that his continued detention in post-removal-order 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.
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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
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).
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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).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
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
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).
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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.”
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.
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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 released from the custody of the
NYSDOCCS on February 14, 2012, and was immediately received into DHS custody for
detention at the Buffalo Federal Detention Center. As an alien under a final order of
removal, petitioner was subject to mandatory detention for the ninety-day removal period
pursuant to INA § 241(a), and thereafter, his continued detention has been authorized by
INA § 241(a)(6), since he is a criminal alien who has been determined to be a risk to the
community or unlikely to comply with the order of removal if released from custody.
Under Zadvydas, the first six months of detention pending execution of a final order
of removal 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
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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 Panama in the reasonably foreseeable future. Indeed, the Panamanian
Consulate issued a travel document for petitioner on April 4, 2012, soon after his detention
in DHS custody commenced, and well within the mandatory ninety-day detention period.
As set forth in respondent’s submissions in response to the present petition, this travel
document “does not expire, [and] is valid for one entry into Panama.” Item 4-1, ¶ 17.
Upon receipt of the travel document, DHS made arrangements for petitioner to
travel to Panama on May 15, 2012. However, upon learning of petitioner’s renewed U Visa
application, followed by USICS’s determination of prima facie eligibility for U Nonimmigrant
status, DHS canceled the travel arrangements and granted petitioner’s request for a sixmonth stay of removal. Then, when USICS denied the U Visa application in January 2013,
petitioner appealed this determination to the USICS AAO. The information presently
before the court indicates that DHS has been in regular contact with USICS to ascertain
the status of the appeal, which remains pending. See Item 4-1, ¶ 24.
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These circumstances provide a reasonable basis for DHS’s determination, grounded
in regulatory policy, to delay execution of the final order of removal until petitioner’s Form
I-918 determination has become administratively final, see 8 C.F.R. § 214.14(c)(5)(ii)
(denial of Form I-918 petition deemed administratively final upon issuance of AAO’s
decision affirming USICS denial), as well as a basis for this court’s conclusion that
petitioner’s continued detention in DHS custody can be primarily attributed to his own
conduct in pursuit of administrative relief. See Sanusi v. I.N.S., 100 F. App’x 49, 51 (2d
Cir. 2004) (six-year duration of detention, while “extremely regrettable …,” did not violate
due process “because the detention has been prolonged primarily by [the petitioner]’s
pursuit of final judicial review of his claims …”) (citing Doherty v. Thornburgh, 943 F.2d
204, 211 (2d Cir. 1992) (although petitioner’s litigation strategy in pursuit of administrative
relief “is perfectly permissible, …[he] may not rely of the extra time resulting therefrom to
claim that his prolonged detention violates substantive due process.”)).
In addition, the available statistical evidence reveals that in recent years, DHS has
successfully repatriated significant numbers of aliens to Panama, indicating no institutional
barriers to petitioner’s removal. For example, DHS reports show that in fiscal year (“FY”)
2009, a total of 199 aliens were repatriated to Panama; in FY 2010, 189 aliens were
repatriated to Panama; and in FY 2011, 98 aliens were repatriated to Panama. See DHS
Yearbook of Immigration Statistics: 2011, Table 41: http://www.dhs.gov/yearbookimmigration-statistics-2011-3. These circumstances provide a further basis for DHS’s
expectation that the necessary travel arrangements for petitioner’s release from custody
and his repatriation to Panama can be accomplished within the reasonably foreseeable
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future following USICS AAO’s final administrative resolution of petitioner’s application for
U Nonimmigrant status.
Significantly, petitioner has provided no evidence to contradict this expectation, or
to otherwise establish that there is no significant likelihood of removal in the reasonably
foreseeable future. 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, 33, 36, 37, 39. However, the federal courts have consistently
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 that there is no significant likelihood of removal under the Supreme Court’s
holding in Zadvydas. See, e.g., Singh v. DHS/ICE, 771 F. Supp. 2d 372 (D.N.J. 2011)
(sixteen month detention upheld where petitioner alleged “no facts to substantiate the
conclusion that there is good reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future”); 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”); Boncy v. Ashcroft, 2006
WL 2927288, at *1 (E.D.Pa. Oct. 10, 2006) (“The six month presumption is merely a
presumption, and Petitioner is required to produce some other evidence that his removal
is unlikely to occur in the reasonably foreseeable future.”); Singh v. Holmes, 2004 WL
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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).
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: November 6, 2013
p:\pending\2013\13-553.2241.nov6.2013
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