Hunt v. Holder et al

Filing 6

-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 2/25/2015. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JULIO ROBERTO HUNT,
Petitioner,
-v-

14-CV-0676-JTC

ERIC HOLDER, U.S. Attorney General,
MICHAEL PHILLIPS, Facility Office Director, and
JOSEPH KOSON, Assigned Deportation Officer at
Buffalo Fed. Detention Facility,
Respondents.

INTRODUCTION
Petitioner Julio Roberto Hunt, an alien in the custody of the United States
Department of Homeland Security, Immigration and Customs Enforcement (collectively,
“DHS”), has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 seeking release from detention at the Buffalo Federal Detention Facility (“BFDF”)
in Batavia, New York, pending the execution of a final immigration order of removal issued
against him. Item 1. As directed by this court’s order entered September 2, 2014 (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. Petitioner declined to file a
written reply. For the reasons that follow, the petition is denied.

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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
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 Panama, was admitted to the United States at
Miami, Florida, on December 18, 1964, as a lawful permanent resident. See Item 4-1
(Declaration of DHS Deportation Officer Juanita Payan, dated June 27, 2014), at ¶ 5. DHS
records reflect that petitioner was convicted of the following criminal offenses while present
in the United States:
a.

On or about February 17, 1971, petitioner was convicted, upon a plea of
guilty, in the New York State Supreme Court, Kings County, of Attempted
Assault with Intent to Cause Serious Injury with Weapon and was sentenced
to a term of imprisonment of one year.

b.

On or about February 27, 1975, petitioner was convicted, upon a plea of
guilty, in the New York State Supreme Court, Kings County, of Attempted
Possession of a Loaded Weapon and was sentenced to a term of
imprisonment of two to three years.

c.

On or about February 20, 1978, petitioner was convicted, upon a plea of
guilty, in the New York Criminal Court, Kings County, of Disorderly Conduct
and was sentenced to 15 days imprisonment and fined $50.

d.

On or about January 1, 1980, petitioner was convicted, upon a plea of guilty,
in the New York Criminal Court, Kings County, in the Queens County, New
York, Criminal Court of Criminal Possession of a Weapon in the 4th Degree
and was granted a conditional discharge.

e.

On or about March 25, 1981, petitioner was convicted, upon a plea of guilty,
in the New York Criminal Court, Kings County, of Disorderly Conduct and
was sentenced to 15 days imprisonment and fined $100.

f.

On or about April 12, 1985, petitioner was convicted, upon verdict after trial,
in the New York State Supreme Court, Kings County, of Criminal Possession
of a Weapon in the 3rd Degree. For that offense, he was sentenced to a term
of imprisonment of 30 months to five years.

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g.

On or about August 24, 1989, petitioner was convicted, upon verdict after
trial, in the New York State Supreme Court, Kings County, of Murder:
Depraved Indifference, Criminal Possession of a Weapon in the 2nd Degree,
and Criminal Possession of a Weapon in the 3rd Degree. For these offenses,
petitioner was sentenced to a term of imprisonment of 25 years to life. On
November 18, 1991, the Appellate Division, Second Department affirmed the
conviction.

Item 4-1, ¶ 6.
On August 6, 1990, while incarcerated at the Clinton Correctional Facility in
Dannemora, New York, petitioner was encountered by agents of the former Immigration
and Naturalization Service. Item 4-1, ¶ 7. On December 15, 1992, petitioner was served
with an Order to Show Cause (“OSC”) that charged him with being removable from the
United States as an alien who has been convicted of an aggravated felony (crime of
violence), pursuant to section 241(a)(2)(A)(iii) of the Immigration and Nationality Act
(“INA”).

Item 4-1, ¶ 8.

On January 24, 2007, an Immigration Judge (“IJ”) denied

petitioner’s request for relief and ordered him removed from the United States to Panama.
Petitioner did not appeal the IJ’s decision to the Board of Immigration Appeals (“BIA”).
Item 4-1, ¶ 9. On June 26, 2014, petitioner was taken into DHS custody upon his release
from the custody of the New York State Department of Corrections and Community
Supervision. Item 4-1, ¶ 10.
On or about July 2, 2014, 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. Item 4-1, ¶ 11. On July 11, 2014, DHS served petitioner with a Form
I-229(a) “Warnings for Failure to Depart,” 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. The warning form advised petitioner, among other things, of the penalties
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under INA § 243 for taking any action “designed to prevent or hamper or with the purpose
of preventing or hampering” his departure from the United States, 8 U.S.C.
§ 1253(a)(1)(C), 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. Item 4-1, ¶ 12. According to
DHS records, representatives of DHS attempted to contact or had contact with the
Consulate on approximately seven occasions in July and August 2014. DHS was advised
that Panamanian officials required a sworn statement of a close relative stating that
petitioner is a national of Panama. DHS, the Consulate, and petitioner have been in
contact with petitioner’s sister so as to obtain the sworn statement, and the Consulate is
awaiting its receipt. Item 4-1, ¶¶ 13-14.
In September 2014, DHS conducted a review of petitioner’s custody status in
accordance with immigration regulations (see 8 C.F.R. § 241.4). On September 18, 2014,
DHS notified petitioner that his detention would be continued, based upon the totality of the
information in petitioner’s case file which indicated that he would be a threat to the
community and a flight risk if he were to be released from custody. Item 4-1, ¶ 15.
Petitioner filed this action on August 18, 2014, seeking habeas corpus relief
pursuant to 28 U.S.C. § 2241 on the ground that his detention in DHS custody is unlawful
because he was never advised, prior to trial or taking a plea, that he would be deportable
if convicted, in violation of the New York State Criminal Code, and the Fifth and Fourteenth
Amendments to the Constitution. 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 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).
The court first notes that petitioner has lodged a collateral attack against the
underlying removal order, arguing that his New York State criminal convictions were
illegally obtained because he was not advised that a guilty plea could result in deportation.
See Item 1, pp. 2-4. This claim appears to be in reliance on Padilla v. Kentucky, 559 U.S.
356 (2010), in which the Supreme Court held that the Sixth Amendment to the Constitution
requires an attorney for a criminal defendant to provide advice about the risk of deportation
arising from a guilty plea.
Petitioner’s argument must fail for several reasons. First, the REAL ID Act of 2005,
Pub. L. No. 109-13, 199 Stat. 231 (codified at 8 U.S.C. § 1252), divests the District Court
of jurisdiction to review a collateral attack on an underlying order of removal asserted by
an alien in a habeas petition. Thus, this court has no jurisdiction to hear petitioner’s
challenge to the legality of the underlying criminal convictions and removal order. Second,
even if the court were to review petitioner’s claim, the holding in Padilla does not apply to
the murder conviction upon which the removal order is based, as petitioner was found

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guilty after trial. Additionally, the 2010 holding in Padilla does not apply retroactively to
petitioner’s 1989 conviction that was affirmed in 1991. See Chaidez v. United States, –
U.S. –, 133 S.Ct. 1103, 1105 (2013). Accordingly, the petition is denied to the extent that
it seeks relief based on the asserted illegality of the underlying removal order.
Moreover, petitioner’s detention is lawful pursuant to INA § 241(a) and in
accordance with Zadvydas. 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; or
(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
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authorizes the Attorney General to continue the detention of certain criminal aliens–i.e.,
aliens ordered removed due to conviction of an enumerated crime–beyond the expiration
of the ninety-day removal period. See 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 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

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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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 the alien’s efforts to comply with the removal order, the
history of the efforts by the agency to repatriate persons to the country in question, the
reasonably foreseeable results of those efforts, and the receiving country’s willingness to
accept repatriation. 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
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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 received into DHS custody on June
26, 2014, upon his release from the custody of the New York State Department of
Corrections and Community Supervision. See Item 4-1, ¶ 10. His detention in DHS
custody was authorized pursuant to INA § 241 as he was subject to a final order of
removal, and the 90-day removal period began. As discussed, DHS then promptly took
steps to obtain travel documents for petitioner’s removal to Panama. Item 4-1, ¶¶ 11, 13
-14.
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

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no factual basis to substantiate a belief that there is no significant likelihood he can be
removed to Panama in the reasonably foreseeable future. As indicated in the discussion
above, the request for a travel document for petitioner remains pending with the Consulate,
and there is nothing in the record before the court to indicate that Panamanian authorities
are inclined to deny the request. Furthermore, DHS records reflect that prompt steps were
taken to secure the travel document and that petitioner’s sister has been contacted to
provide the required sworn statement of nationality. Item 4-1, ¶ 14.
In addition, the available statistical evidence reveals that in recent years, DHS has
successfully repatriated significant numbers of aliens to Panama indicating that there are
no institutional barriers to petitioner’s removal. For example, DHS reports show that in
fiscal year (“FY”) 2010, a total of 188 aliens were repatriated to Panama; in FY 2011, 149
aliens were repatriated to Panama; and in FY 2012, 116 aliens were repatriated to
Panama.

See DHS Yearbook of

Immigration Statistics: 2012, Table

41:

http://www.dhs.gov/yearbook-immigration-statistics-2012-3. These circumstances provide
a reasonable basis for DHS’s expectation that the verification required for the issuance of
a travel document by the Panamanian government can be accomplished within the
reasonably foreseeable future, after which time the necessary travel arrangements may
be made for petitioner’s release from custody and his repatriation to Panama.
Significantly, petitioner has provided no evidence to contradict this expectation, and
the presumptively reasonable six-month period established in Zadvydas just recently
passed, on December 26, 2014. See, Item 5, at p. 10. Several cases decided within this
district have found a habeas petitioner’s assertion as to the unforeseeability of removal,
supported only by the mere passage of time, is insufficient to meet the petitioner’s initial
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burden to demonstrate no significant likelihood of removal under the Supreme Court’s
holding in Zadvydas. See, e.g., Khaleque v. Dep’t of Homeland Sec., 2009 WL 81318, at
*4 (W.D.N.Y. Jan. 9, 2009) (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.

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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.

So ordered.

_______\s\ John T. Curtin__________
JOHN T. CURTIN
United States District Judge
Dated: February 25, 2015

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