Wynter v. Tyron et al

Filing 9

-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 4/16/2014. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JEFFREY WYNTER, A18-560-301,
Petitioner,
-v-

13-CV-1027-JTC

TODD L. TRYON and
MICHAEL PHILLIPS, Field Office
Director,
Respondents.

INTRODUCTION
Petitioner Jeffrey Wynter, 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 October 28, 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 filed a responding memorandum
(Item 8).
For the reasons that follow, the petition is denied.

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).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner, a native and citizen of Jamaica, was admitted to the United States at
New York, New York, on or about July 11, 1969, as a lawful permanent resident. See Item
4-2 (Exh. A, attached to Declaration of DHS Supervisory Detention and Deportation Officer
David Krygier, Item 4-1), pp. 2, 5, 12.
According to DHS records, petitioner has been convicted of the following criminal
offenses while present in the United States:
a.

On or about June 12, 1984, petitioner was convicted in the Monroe
County Court, State of New York, of Attempted Sexual Abuse in the
1st Degree, in violation of N.Y. Penal Law §§ 110-130.65-01. For this
offense, he was sentenced to 5 years probation. On March 26, 1986,
petitioner was found in violation of probation and he was re-sentenced
to 1 year imprisonment.

b.

On or about May 7, 1986, petitioner was convicted in the Monroe
County Court, State of New York, of Sexual Abuse: contact forcible
compulsion, in violation of N.Y. Penal Law § 130.65-01. For this
offense, he was sentenced to 3 to 6 years imprisonment.

c.

On or about May 13, 1996, petitioner was convicted in Rochester City
Court, Rochester, New York, of Criminal Contempt in the 2nd Degree,
in violation of N.Y. Penal Law § 215.50-03. For this offense, he was
granted a conditional discharge.

d.

On or about July 19, 2000, Petitioner was convicted in Monroe County
Court, State of New York, of Rape in the 1st Degree, in violation of
N.Y. Penal Law § 130.35- 1. For this offense, he was sentenced as
a second felony offender to 20 years imprisonment. Petitioner
appealed the conviction to the Appellate Division of New York State
Supreme Court, Fourth Department, which unanimously affirmed the
conviction. Petitioner’s request for leave to appeal to the New York
State Court of Appeals was denied. Petitioner filed in the United
States District Court for the Western District of New York, a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging
his conviction in Monroe County Court for Rape in the 1st Degree. On
December 6, 2006, Petitioner’s § 2254 habeas petition was granted.
See Wynters v. Poole, 464 F. Supp. 2d 167 (W.D.N.Y. 2006).
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e.

On or about August 23, 2000, Petitioner was convicted in Monroe
County Court, State of New York, of Rape in the 3rd Degree, in
violation of N.Y. Penal Law § 130.25-02 and Sodomy, in violation of
N.Y. Penal Law § 130.40-02. For these offenses, he was sentenced
to 1½ to 3 years imprisonment. On March 19, 2008, this conviction
was vacated by a New York criminal court pursuant to New York
Criminal Procedure Law § 440.10. Petitioner was tried again, and on
September 25, 2008, he was found guilty of Attempted Rape in the
3rd Degree, in violation of N.Y. Penal Law §§ 110-130.25-02 and
sentenced to time served (approximately 6 years and 10 months).
Petitioner appealed the September 25, 2008 conviction, which was
affirmed by the Appellate Division, Fourth Department, on November
10, 2011. Petitioner then applied for leave to appeal to the Court of
Appeals of New York which application was denied on March 8, 2012.

Item 4-1, ¶ 9.
On October 25, 1988, petitioner was served with an Order to Show Cause which
charged him with being deportable based upon his 1984 and 1986 convictions on charges
of sexual abuse. See Item 4-2, p. 5. On April 7, 1992, petitioner was granted a waiver
against deportation pursuant to the former Immigration and Nationality Act (“INA”) § 212(c).
Id.
On September 18, 2006, petitioner was served a Notice to Appear (“NTA”) which
charged him with being removable from the United States as an aggravated felon based
on his criminal conviction on August 23, 2000 for the offenses of Rape in the 3rd Degree
and Sodomy in the 3rd Degree. Id. at 6, 16. On November 28, 2007, an immigration judge
(“IJ”) found petitioner to be an aggravated felon ineligible for any forms of relief and
ordered him removed from the United States to Jamaica. Id.
On March 24, 2008, petitioner filed a motion with the Board of Immigration Appeals
(“BIA”) seeking to reopen his immigration proceedings. Id. at 6. On April 4, 2008, the BIA
issued a written decision granting petitioner’s motion and terminating his removal
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proceedings because the rape and sodomy convictions underlying petitioner’s removability
were vacated by a New York criminal court pursuant to New York Criminal Procedure Law
§ 440.10. Id. at 6-7. As mentioned above, petitioner was re-tried in September 2008, in
Supreme Court, Monroe County. He was found guilty of Rape in the 3rd degree, and was
sentenced to time served. Id. at 16, 56. His appeal from this conviction was finally
dismissed by the state courts on March 8, 2012. See People v. Wynters, 932 N.Y.S. 2d
757 (App. Div. 4th Dep’t Nov. 10, 2011), leave to appeal denied, 18 N.Y.3d 963 (Mar. 8,
2012).
Petitioner’s removal proceedings were then re-commenced by issuance of a further
NTA on July 16, 2012, charging petitioner with being subject to removal from the United
States 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)(43)(A) (murder, rape or sexual abuse of a
minor). Id. at 12-13. Petitioner was taken into DHS custody pursuant to an arrest warrant,
also issued on July 16, 2012, and executed by DHS officers at petitioner’s residence in
Rochester, New York, on July 26, 2012. Id. at 14-18.
On September 5, 2012, IJ Steven J. Connelly denied petitioner’s request for change
in custody status and determined that petitioner was subject to mandatory detention
pursuant to the provisions of INA § 236(c). Id. at 11. On September 25, 2012, IJ Connelly
denied petitioner’s further requests for relief and ordered petitioner removed from the
United States to Jamaica. Id. at 10. This removal order became administratively final on
February 12, 2013, when the BIA dismissed petitioner’s appeal. Id. at 6, 9.

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Meanwhile, on December 12, 2012, petitioner filed a prior action in this court
(Wynter v. Phillips, et. al., No. 12-CV-1233-JTC) seeking habeas corpus relief pursuant to
28 U.S.C. § 2241 on the ground that DHS violated his substantive due process rights by
detaining him at the Buffalo Federal Detention Facility in Batavia, New York, since July 26,
2012, without conducting an individualized bond hearing pursuant to INA § 236(a). By
decision and order entered on May 2, 2013, this court denied the petition as premature.
Wynter v. Phillips, et. al., 2013 WL 1879667 (W.D.N.Y. May 3, 2013).

The court

determined that, since petitioner was an alien determined to be removable based on a
conviction for an aggravated felony, his detention was mandatory pursuant to INA § 241(a)
for a period of ninety days following the BIA’s denial of his appeal from the IJ’s removal
order, and the statutory period had not yet expired.
On or about February 12, 2013, DHS sent a presentation packet to the Consulate
General of Jamaica (the “Consulate”) in New York City, requesting that a travel document
be issued for petitioner’s removal. Item 4-2, p. 25. DHS records further reflect that
petitioner was interviewed by a representative of the Consulate on February 26, 2013.
Item 4-1, ¶ 21. Then, on March 1, 2013, petitioner filed in the United States Court of
Appeals for the Second Circuit a pro se petition for review of the BIA’s order of February
12, 2013, accompanied by a request for stay of removal. The petition for review and
motion for stay were denied by the Second Circuit on March 17, 2014. See Docket Sheet,
Wynter v. Holder, 2d Cir. Docket # 13-720.
While the petition for review was pending in the circuit court, on March 11, 2013,
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
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days to assist in obtaining a travel document for his removal from the United States. Item
4-2, p. 8. 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), a 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.
In accordance with immigration regulations (see 8 C.F.R. § 241.4), DHS reviewed
petitioner’s custody status in May 2013, and notified petitioner by letter dated May 14,
2013, that based upon the totality of information available—including his criminal history
demonstrating “wanton disregard for the laws of the United States” (id. at 6), DHS
considered him to pose a risk of flight and a threat to the safety of the community if he was
released from custody. Id. at 5-7.
An additional review of petitioner’s custody status was conducted by DHS
Headquarters Post Order Custody Review Unit (“HQPOCRU”). As part of that review, a
panel was convened on August 8, 2013, at the Buffalo Federal Detention Facility to
conduct an in-person interview of petitioner. Id. at 2, 4. Following completion of the file
review and interview, petitioner was notified on or about August 15, 2013, that DHS had
determined to continue his detention. Id. at 2-3.
The present petition was filed in this court on October 7, 2013, seeking habeas
corpus review pursuant to 28 U.S.C. § 2241 on the ground that his continued detention
in DHS custody since July 26, 2012, is unlawful since it has exceeded the “presumptively
reasonable” six-month period established under the due process standards set forth by the

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United States Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001). Upon full
consideration of the matters set forth in the submissions on file, and for the reasons that
follow, the petition is denied.

DISCUSSION
Petitioner challenges his continued detention by way of habeas corpus review under
28 U.S.C. § 2241, which “authorizes a district court to grant a writ of habeas corpus
whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of the
United States.’ ” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C.
§ 2241(c)(3)); see also Zadvydas, 533 U.S. at 687 (petition under § 2241 is the basic
method for statutory and constitutional challenges to detention following order of removal).
Matters pertaining to the detention of aliens pending the completion of immigration
removal proceedings and pending removal following the entry of a final order of removal
are governed by two separate provisions of the INA—respectively, INA § 236, which
authorizes the arrest and detention of an alien on warrant pending a decision on whether
the alien is to be removed from the United States, and INA § 241, which authorizes
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.

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(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—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

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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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 to
the country to which the alien was ordered removed and there is no third country willing to
accept the alien.” 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:
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[T]he history of the alien's efforts to comply with the order of removal, the
history of the Service's efforts to remove aliens to the country in question or
to third countries, including the ongoing nature of the Service's efforts to
remove this alien and the alien's assistance with those efforts, the
reasonably foreseeable results of those efforts, and the views of the
Department of State regarding the prospects for removal of aliens to the
country or countries in question. Where the Service is continuing its efforts
to remove the alien, there is no presumptive period of time within which the
alien's removal must be accomplished, but the prospects for the timeliness
of removal must be reasonable under the circumstances.
8 C.F.R. § 241.13(f).
If the agency finds that the alien has met the burden of demonstrating good reason
to believe there is no significant likelihood of removal in the reasonably foreseeable future,
and that there are no special circumstances justifying continued detention, then it must
order the detainee released. 8 C.F.R. § 241.13(g)(1). However, the agency may impose
certain conditions of release on the alien, such as requiring a bond, attendance in a
rehabilitative program, or submission to a medical or psychiatric examination. See 8
C.F.R. §§ 241.5(b), 241.13(h)(1); see also Zadvydas, 533 U.S. at 695 (“[W]e nowhere deny
the right of Congress to remove aliens, to subject them to supervision with conditions when
released from detention, or to incarcerate them where appropriate for violations of those
conditions.”).
As set forth above, in this case petitioner was placed into DHS custody on July 26,
2012, pursuant to a Warrant of Arrest, pending completion of immigration removal
proceedings which were re-commenced on July 16, 2012 following exhaustion of
petitioner’s appeals from his state court conviction and sentence after retrial.

This

“pre-final” mandatory detention was authorized pursuant to INA § 236(c)(1)(B) (“The
Attorney General shall take into custody any alien who … is deportable by reason of having
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committed [an aggravated felony]”). That detention under INA § 236 continued until
February 12, 2013, when the BIA dismissed petitioner’s appeal of the IJ’s order of removal.
See 8 C.F.R. § 1241.1(a) (order of removal shall become final upon dismissal of appeal
by the BIA).
After the order of removal became final on February 12, 2013, petitioner’s detention
was authorized pursuant to INA § 241(a)(1)(B)(i) (90-day period begins on the date the
order of removal becomes final), and § 241(a)(2) (“During the removal period, the Attorney
General shall detain the alien. Under no circumstance during the removal period shall the
Attorney General release an alien who has been found … deportable [as a criminal
alien].”). Accordingly, DHS promptly commenced efforts, on February 12, 2013, to secure
a travel document for petitioner’s removal to Jamaica. See Item 4-1, ¶ 18.
However, on March 1, 2013, petitioner sought review by the Second Circuit of the
BIA’s dismissal of his appeal from the IJ’s removal order by way of a petition for review and
motion for stay of removal, which numerous decisions by the federal courts within this
circuit have held triggers the application of a “forbearance policy” under which DHS has
agreed not to effectuate the removal of an alien while the petition for review remains
pending before the circuit court. See, e.g.,Galarza v. Holder, 2014 WL 526638, at *4-5
(W.D.N.Y. Feb. 7, 2014) (citing cases); 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 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”).
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Pursuant to this policy, the removal period which began on February 12, 2013, was
“effectively stayed” as of March 1, 2013, when petitioner filed his petition for review and
motion for stay of removal with the Second Circuit. Luna-Aponte, 743 F. Supp. 2d at 190.
Furthermore, as this court has previously recognized, “[d]etention during an
appellate stay of removal, whether formal or in accordance with the Second Circuit's
informal forbearance policy, generally is not indefinite because the litigation itself has a
definite endpoint.” Andreenko v. Holder, 2012 WL 4210286, at *3 (W.D.N.Y. Sept. 18,
2012) (citing Prieto–Romero v. Clark, 534 F.3d 1053, 1065 (9th Cir.2008) (alien's lengthy
detention not indefinite under INA § 236 where endpoint foreseeable with end of litigation);
Soberanes v. Comfort, 388 F.3d 1305, 1311 (10th Cir.2004) (holding alien's detention
during judicial review not indefinite because it has a “definite and evidently impending
termination point”); Obikanye v. INS, 78 F. App’x 769, 772 (2d Cir. Oct.24, 2003) (“Because
Obikanye's removal is reasonably foreseeable, his detention does not implicate Zadvydas;
he will be subject to removal if this Court denies his pending petition for review, and, if he
prevails on the petition for review and is granted asylum, he will be released. Accordingly,
the district court properly denied his § 2241 petition.”). As in Andreenko, since the Second
Circuit recently dismissed the petition for review and motion for stay of removal, the
endpoint in petitioner's litigation challenging the underlying removal order has been
reached, and the forbearance policy is no longer in effect. DHS can therefore promptly
recommence efforts to secure a new travel document for petitioner from the Jamaican
Consulate, and there is nothing in the petition or elsewhere in the record before the court

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to indicate that DHS will be unable to execute the final order of removal within a reasonable
time hence.
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. Doherty v. Thornburgh, 943 F.2d
204, 211 (2d Cir. 1991) (petitioner cannot rely on delays resulting from litigation strategy
to claim that eight-year detention pending deportation violates substantive due process);
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”).

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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 a reasonable belief that there is no significant likelihood of
removal to Jamaica in the reasonably foreseeable future. As indicated above, on the same
day that the IJ’s removal order became administratively final upon the BIA’s dismissal of
petitioner’s appeal, DHS immediately contacted the Jamaican Consulate to request the
documents necessary for removal and repatriation. The request remains pending with the
Consulate, and there is nothing in the record before the court to indicate that Jamaican
authorities are inclined to deny the request.
In addition, the available statistical evidence reveals that in recent years, DHS has
successfully repatriated significant numbers of aliens to

, indicating no 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/yearbookimmigration-statistics-2011-3. These circumstances provide a reasonable basis for DHS’s
expectation that the verification required for the issuance of a travel document by the
Jamaican government can be accomplished within the reasonably foreseeable future now
that the circuit court has dismissed the petition for review, after which time the necessary
travel arrangements may be made for petitioner’s release from custody and his repatriation
to Jamaica.
Significantly, petitioner has provided no evidence to contradict this expectation, or
to otherwise establish compliance with the requirements of the DHS regulations described
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above. Instead, petitioner relies solely on the fact that his detention has exceeded the
presumptively reasonable six-month period established in Zadvydas. 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).

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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.

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: April 16, 2014
p:\pending\2013\13-1027.mar28.2014

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