Luna-Aponte v. Holder et al

Filing 15

DECISION AND ORDER dismissing petition. This action is dismissed. Pursuant to 28 U.S.C. § 2253, the Court declines to issue a certificate of appealability, since Petitioner has not made a substantial showing of the denial of a constitutional right.. Signed by Hon. Charles J. Siragusa on 9/10/10. (KAP)

Luna-Aponte v. Holder et al

Doc. 15

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK __________________________________________ W O R L K L IS LUNA APONTE, P e t it io n e r , -vs D E C IS IO N AND ORDER E R IC HOLDER, JR., United States A tto rn e y General, et al., R e s p o n d e n ts . ___________________________________________ N o . 10-CV-6024 CJS

APPEARANCES F o r Petitioner: W o rlk lis Luna-Aponte, pro se A 4 4 -1 3 3 -1 2 0 B u f f a lo Federal Detention Center 4 2 5 0 Federal Drive B a ta v ia , New York 14020 Amici Curiae J u d y Rabinovitz, Esq. T a n a z Moghadam, Esq. A m e ric a n Civil Liberties Union Foundation Im m ig ra n ts ' Rights Project 1 2 5 Broad Street, 18 th Floor N e w York, New York 10004 A rth u r Eisenberg, Esq. N e w York Civil Liberties Union 1 2 5 Broad Street, 19 th Floor N e w York, New York 10004

F o r Respondents:

G a il Y. Mitchell, Esq. A s s is ta n t United States Attorney 1 3 8 Delaware Avenue B u f f a lo , New York 14202

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Dockets.Justia.com

INTRODUCTION P e titio n e r W o rlk lis Luna Aponte ("Petitioner") is a native and citizen of the D o m in ic a n Republic, who has been administratively ordered to be removed from this c o u n try because of his criminal activity. Petitioner is seeking judicial review of his removal o rd e r by the United States Circuit Court of Appeals for the Second Circuit. In the m e a n tim e , Petitioner, whose deportation has been effectively stayed pursuant to an a g re e m e n t between the Attorney General and the Second Circuit Court of Appeals, has re m a in e d in civil detention for approximately 39 months, without a bond hearing. Pursuant to 28 U.S.C. § 2241, Petitioner contends that such detention violates his rights u n d e r the Immigration and Naturalization Act ("INA") and the Due Process Clause of the F if th Amendment to the United States Constitution. For the reasons that follow, the p e titio n is denied. BACKGROUND In or about 1993, Petitioner entered the United States as a lawful permanent re s id e n t alien. On September 20, 2006, Petitioner was convicted, in New York State S u p re m e Court, Kings County, of Criminal Possession of a Controlled Substance in the F if th Degree, a class D felony, in violation of Penal Law § 220.31, and sentenced to e ig h te e n months in state prison. On November 21, 2006, the U.S. Department of Homeland Security ("DHS") c h a rg e d Petitioner with being subject to removal from the United States as an alien c o n v ic te d of a controlled substance offense, pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C. § 1 2 2 7 (a )(2 )(B )(i), and as an alien convicted of a drug trafficking crime, pursuant to INA § 2 3 7 (a )(2 )(A )(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). W h ile this removal proceeding was

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pending, Petitioner filed an application in New York State Supreme Court, New York C o u n ty, to have his conviction under Penal Law § 220.31 set aside, on the grounds that h is attorney failed to provide him effective assistance, by failing to explain to him that his g u ilty plea could result in deportation. Petition at p. 4.1 Petitioner requested that his re m o v a l proceedings be stayed pending the outcome of that application. However, on M a y 3, 2007, an Immigration Judge ("IJ") ordered that Petitioner be removed from the U .S . on both of the grounds charged. On May 13, 2007, Petitioner was released from the c u s to d y of the New York State Department of Correctional Services ("DOCS"), and taken in to custody by the DHS. Petitioner appealed the IJ's order, on the grounds that the IJ s h o u ld have stayed the removal proceeding, pending the outcome of his application to h a v e his conviction vacated. However, on July 20, 2007, the Board of Immigration A p p e a ls ("BIA") dismissed the appeal. O n September 5, 2007, Petitioner filed an untimely appeal with the United States C irc u it Court of Appeals for the Second Circuit. (Case No. 07-3796-ag). Although P e titio n e r does not indicate the basis for the appeal, it appears that he is again claiming th a t the IJ should have stayed his removal proceedings pending the outcome of his a p p lic a tio n to vacate his conviction in New York State Supreme Court. Petition at p. 6; BIA A p p e a l. Petitioner also filed a motion for a stay of removal, which the Second Circuit has n e v e r granted or denied. Petitioner's deportation, though, has been effectively stayed n o n e th e le s s , pursuant to a standing agreement ("the forbearance policy") between the U n ite d States Attorney General and the Second Circuit. See, Affidavit of Donald J.

T h e record contains no further inform a tio n concerning this three-year-old application, and it th e r e f o r e appears that the application was denied.

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Vaccaro, Jr. at ¶ 17 ("Luna-Aponte's case is subject to an agreement between DHS and [th e Second Circuit] which provides that DHS will not remove any alien who has requested a stay of removal with a petition for review of an immigration order of removal, unless a g o v e rn m e n t motion opposing the stay is granted by the court or the alien's stay motion is o th e rw is e denied."). R e s p o n d e n t filed a motion with the Second Circuit, to deny the appeal as untimely, a n d to deny the motion for a stay. The Second Circuit directed the parties to brief the th re s h o ld jurisdictional issue of whether dismissal of the petition would violate the S u s p e n s io n Clause of the United States Constitution. In that regard, the Second Circuit c o n s o lid a te d Petitioner's case with several other cases raising the same issue, and a p p o in te d counsel to represent Petitioner. The briefing schedule was extended several tim e s , and the Circuit Court has not yet issued a decision. In the meantime, since May 13, 2007, Petitioner has been detained at the Buffalo F e d e ra l Detention Facility. During that period, DHS has taken steps to obtain the n e c e s s a ry travel documents to return Petitioner to the Dominican Republic. In that re g a rd , DHS maintains that there is nothing to prevent Petitioner from being deported at th is time, except for the aforementioned forbearance policy. DHS further states that there w ill be no obstacle to returning Petitioner to the Dominican Republic if the Order of R e m o v a l is affirmed, since "DHS regularly removes aliens to the Dominican Republic." V a c c a ro Aff. ¶ 18. Additionally, DHS has conducted periodic reviews of Petitioner's custody status. Specifically, DHS conducted such reviews in October 2007, October 2008, and October

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2009.2 The reviews consisted of an examination of Petitioner's file by a DHS employee. F o llo w in g each such review, DHS notified Petitioner that it would continue his detention, s in c e , if he was released, he would pose a threat to the community and would also pose a ris k of flight. W ith respect to this, DHS stated that Petitioner had two criminal convictions, o n e in 2006, for Criminal Sale of a Controlled Substance in the Fifth Degree, and one in 2 0 0 1 , for Robbery in the Third Degree.3 As to the robbery conviction, DHS stated that P e titio n e r was originally sentenced to probation, but violated probation, and was res e n te n c e d to six months' incarceration. DHS further stated: The nature of your crimes demonstrates a pattern of disregard for the laws o f the United States. You have also shown an inability to conform to the ru le s of society, exemplified by your violation of the conditions of your p ro b a tio n , making you a flight risk. In addition, your promotion of illegal d ru g s on the streets in the community poses a significant threat to c o m m u n ity members and their children. P e titio n e r maintains that the custody reviews in 2008 and 2009 did not provide him with a p p ro p ria te procedural safeguards as required by 8 C.F.R. § 241.4. For example, P e titio n e r contends that he was denied the opportunity to present his case in 2009, since h e was given notice of the custody review the same day that it occurred. Petitioner also

A s discussed further below, DHS conducted such reviews because it m a in ta in s that Petitioner's s itu a tio n is governed by INA § 241, and specifically, by 8 U.S.C. § 1231(a)(6), which grants DHS discretion to release crim in a l aliens under certain circum s ta n c e s . However, since Petitioner was, and is, actually b e in g detained pursuant to INA § 236(c), which provides for m a n d a to r y detention of crim in a l aliens, he w a s not eligible for release. Prior to such custody reviews, in his BIA appeal, Petitioner represented that his conviction for C r im in a l Sale of Controlled Substance in the Fifth Degree was his "first and only conviction." BIA Appeal at p . 1. However, in this action, Petitioner does not dispute that he was also previously convicted of robbery, o r that he violated his probation. Instead, Amici Curiae refer to the earlier conviction, but dism is s it as " o n e from nearly a decade ago for which he received a noncustodial setence." Am ic i Brief at 12. Am ic i do n o t address DHS's contention that Petitioner violated his probation, except to say that such violation does n o t necessarily "reflect[ ] on Mr. Luna-Aponte's current risk of flight." Am ic i Brief at 17 (em p h a s is in o r ig in a l) .
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states that DHS placed too much emphasis on his criminal history, while ignoring the fact th a t he has never received a misbehavior report while in custody of either DOCS or DHS. Petitioner further states that DHS failed to consider that he has relatives residing lawfully in the U.S. Petitioner contends that DHS's review process was inadequate, because it did n o t provide an individualized hearing by a neutral decision-maker, improperly placed the b u rd e n of proof on him, and did not provide for an appeal. On January 15, 2010, Petitioner commenced this action. Petitioner contends that h e is being detained pursuant to INA § 236, 8 U.S.C. § 1226, and that such prolonged d e te n tio n , without an individualized bond hearing, violates INA § 236(c) and the Fifth A m e n d m e n t Due Process Clause. Petitioner acknowledges that § 236(c) "requires the A tto rn e y General to take into custody certain classes of criminal aliens, including aliens w ith convictions of the nature of Petitioner's, and generally prohibits their release unless e s s e n tia l to a criminal investigation." Petition at 10. However, he contends that in s itu a tio n s such as his, where the appeal process becomes prolonged, criminal aliens b e c o m e entitled to bond hearings under INA § 236(a). In support of his position, Petitioner cites, inter alia, Demore v. Kim, 538 U.S. 510, 1 2 3 S.Ct. 1708 (2003), in which the majority stated that mandatory detention of criminal a lie n s under INA § 236(c), "for the brief period necessary for their removal proceedings," w a s constitutional, and in which Justice Kennedy, in a concurring opinion, indicated that a p e rs o n detained under INA § 236(c) may become entitled to an individualized detention h e a rin g if the continued detention becomes "unreasonable or unjustified." From this, P e titio n e r reasons that once removal proceedings are no longer "brief," aliens become e n title d to bond hearings. Petitioner further maintains that at such a hearing, DHS should

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bear the burden of proving that continued detention is necessary. As an additional factor in his favor, Petitioner offers, in conclusory fashion, that his appeal to the Second Circuit h a s merit4 , though that appears doubtful, since his attempt to have his drug conviction set a s id e appears to have failed, and since he has not explained why the BIA's determination w a s erroneous in any event. In opposition to the petition, Respondents deny that Petitioner is being held p u rs u a n t to INA § 236(c). Instead, Respondents contend that Petitioner is being detained u n d e r INA § 241, since no court-ordered stay of deportation was entered, and further c o n te n d that such detention is reasonable and proper, pursuant to Zadvydas v. Davis, 533 U .S . 678 (2001) ("Zadvydas"), since there is a "significant likelihood of removal in the re a s o n a b ly foreseeable future." Specifically, Respondents maintain that the only o b s ta c le to Petitioner's removal is the aforementioned forbearance policy. Respondents re ite ra te that INA § 236(c) does not apply to Petitioner, since his removal is stayed p u rs u a n t to the forbearance policy, and not pursuant to a judicial order. Respondent's M e m o of Law at 10, n. 3. On this point, Respondents argue that Petitioner is essentially in control of his fate, since "review of his removal order can continue even if [he] is re m o v e d from the United States," and that "[s]uch being the case, [he] has the choice to re m a in in detention, or to agree to removal pending the Second Circuit's decision on his p e titio n for review. To gain his release from continued detention, Luna-Aponte has only to w ith d ra w his request for a stay of removal." Id. at 12. Alternatively, Respondents argue th a t even if Petitioner was being detained pursuant to INA § 236(c), such detention "would

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P e titio n e r 's Traverse at 5-6 ("Petitioner has a substantial challenge to rem o v a l." ) .

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be lawful given the facts of his case," Id. at 11, n. 3, since he has received all of the due p ro c e s s to which he is entitled. Subsequently, Amici Curiae ("Amici") submitted a brief on behalf of Petitioner. Amici state that Respondents have misunderstood the nature of Petitioner's claim, since h e has never alleged that his removal is not reasonably foreseeable. Instead, they m a in ta in that Petitioner's prolonged detention has become unreasonable, and that DHS m u s t provide him with an individualized bond hearing, at which DHS will bear the burden o f proving that continued detention is necessary: L u n a -A p o n te seeks release not because his removal is not `reasonably f o re s e e a b le ' under Zadvydas, but because his nearly three years of d e te n tio n , without a constitutionally adequate bond hearing, violates his rig h ts under both the INA and the Due Process Clause . . . . Luna-Aponte h a s never asserted that his claim is ripe under the Zadvydas standard. . . . The Supreme Court has never upheld prolonged civil detention of this length in the absence of a meaningful hearing before an impartial adjudicator w h e re the government bears the burden of justifying continued im p ris o n m e n t. Yet far from receiving such a hearing, the only process that M r. Luna-Aponte has received is a string of perfunctory administrative c u s to d y reviews before the very agency adjudicators who are responsible for h is detention, where he bore the burden of demonstrating lack of danger a n d flight risk, had no opportunity to examine or rebut the Government's a lle g a tio n s , and had no appeal of the agency's decision. This kind of review f a lls far short of what due process requires. A m ic i Brief at 3-4. However, Amici maintain that the Court need not, and should not, a d d re s s the constitutional issue raised, and should instead interpret "the immigration s ta tu te " "as authorizing pre-final order immigration detention only for the period of time n e c e s s a ry to conclude removal proceedings[,] and as requiring a constitutionally adequate b o n d hearing whenever such detention becomes prolonged." Id. at 5. Amici insist that Petitioner is being detained pursuant to INA § 236, and not § 241, b u t that, in either case, he is entitled to a bond hearing:

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[B]ecause Mr. Luna-Aponte's removal order has been [effectively] stayed p e n d in g judicial review, the best reading of the statutory scheme is that his d e te n tio n is governed by [INA § 236],8 U.S.C. § 1226, the pre-removal order s ta tu te , and specifically the discretionary detention provision, § 1226(a), not th e mandatory detention provision, § 1226(c).5 Regardless of what statute a p p lie s , however, none of these provisions authorize Mr. Luna-Aponte's u n re a s o n a b ly prolonged detention, at least in the absence of a c o n s titu tio n a lly adequate bond hearing. A m ic i Brief at 19. Essentially, Petitioner asks the Court to construe the relevant portions of the INA a n d its regulations so as to avoid finding them unconstitutional. First, Petitioner asks the C o u rt to find that he is being detained under INA § 236, even though there is no courto rd e re d stay in place, because DHS's forbearance policy creates a "de facto stay of re m o v a l." Amici Brief at 21. Moreover, even though Petitioner, as a criminal alien, clearly f a lls under the mandatory detention provision of § 236(c), he maintains that the Court s h o u ld treat him as falling under § 236(a), since prolonged detention under § 236(c) would v io la te the Due Process clause, in light of the Supreme Court's holding in Demore. Additionally, Petitioner contends that he is entitled to a hearing before a neutral authority, a t which DHS must bear the burden of proving that continued detention is necessary, e v e n though 8 C.F.R. § 241.4 places the burden of proof on the detained alien.

IN A § 236(c), 8 U.S.C. § 1226(c), "m a n d a te s detention during rem o v a l proceedings for a lim ite d c la s s of deportable aliens ­ including those convicted of an aggravated felony." Zadvydas v. Davis, 123

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S .C t. at 1714. The policy considerations behind 8 U.S.C. § 1226 are discussed at length in Demore v.
K im , 123 S.Ct. at 1714-1716. Clearly, if Petitioner is being detained pursuant to § 236, it is pursuant to s u b s e c tio n (c). However, Am ic i contend that prolonged, indefinite m a n d a to r y detention under that section is unreasonable, and that the Court should therefore find, for constitutional reasons, that Petitioner's d e te n tio n status is now pursuant to subsection (a).

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DISCUSSION

Petitioner brings this action pursuant to 28 U.S.C. § 2241(c)(3), 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)). Section 2241 allows
f o r habeas challenges to civil detention by a person, such as Petitioner, who is the subject o f a deportation order. Zadvydas v. Davis, 121 S.Ct. at 2498. T h e Fifth Amendment's Due Process Clause applies to aliens, "whether their p re s e n c e here is lawful, unlawful, temporary, or permanent," and this includes aliens s u b je c t to final orders of removal, "though the nature of that protection may vary d e p e n d in g upon status and circumstance." Zadvydas v. Davis, 121 S.Ct. at 2500-2501. Congress has clearly indicated, in the INA, that deportable criminal aliens such as P e titio n e r are to be detained during the pendency of their removal proceedings. See, 8 U .S .C . § 1226(c); Demore v. Kim, 123 S.Ct. at 1720 ("Such detention necessarily serves th e purpose of preventing deportable criminal aliens from fleeing prior to or during their re m o v a l proceedings, thus increasing the chance that, if ordered removed, the aliens will b e successfully removed."). Deportable aliens must also be detained during the first n in e ty days after their removal orders become final, 8 U.S.C. § 1231(a)(2), and criminal a lie n s such as Petitioner may be detained beyond that period. 8 U.S.C. § 1231(a)(6). In Demore v. Kim, the Supreme Court held that mandatory detention of criminal a lie n s under INA § 236(c), during removal proceedings, is constitutional. In Demore, a d e p o rta b le alien challenged his mandatory detention pending the outcome of his removal p ro c e e d in g s , on the grounds that 8 U.S.C. § 1226(c) violated the Fifth Amendment's Due

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Process Clause. The alien argued, for example, that such mandatory detention was u n n e c e s s a ry, and that the government could instead conduct "individualized bond h e a rin g s ." Id., 123 S.Ct. at 1720. The Court rejected that argument, in keeping with its "lo n g s ta n d in g view that the Government may constitutionally detain deportable aliens d u rin g the limited period necessary for their removal proceedings." Id., 123 S.Ct. at 1719. On this point, the Demore decision noted that, based on then-current statistics, detention u n d e r 8 U.S.C. § 1226(c) "lasts roughly a month and a half in the vast majority of cases in w h ic h it is invoked, and about five months in the minority of cases in which the alien c h o o s e s to appeal." Id., 123 S.Ct. at 1721. The Court observed that while such detention w o u ld be unconstitutional if it was "`indefinite' and `potentially permanent,'" detention u n d e r INA § 236(c) was typically "of a much shorter duration." Id., 123 S.Ct. at 1720 (c itin g Zadvydas). However, the Court did not set any time limits on the Government's a b ility to detain aliens under § 236(c). As indicated above, in a concurring opinion, J u s tic e Kennedy observed that, "since the Due Process Clause prohibits arbitrary d e p riv a tio n s of liberty, a lawful permanent resident alien [subject to mandatory detention u n d e r 8 U.S.C. § 1226(c)] could be entitled to an individualized determination as to his ris k of flight and dangerousness if the continued detention became unreasonable or u n ju s tif ie d ." Id., 123 S.Ct. at 1722 (Kennedy, J., concurring) (citing Zadvydas). The Supreme Court has also held that indefinite detention of a criminal alien, f o llo w in g the entry of a final order of removal, under INA § 241, would violate the Due P ro c e s s Clause. In Zadvydas v. Davis, a group of criminal aliens subject to final orders of re m o v a l challenged their continued civil detention, under 8 U.S.C. § 1231(a)(6), after it b e c a m e apparent that they could not be deported because no country was willing to

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accept them. The Court held that "indefinite detention" of such aliens "would raise serious c o n s titu tio n a l concerns," and it therefore "construe[d] the statute to contain an implicit `re a s o n a b le time' limitation." Id., 121 S.Ct. at 2495. The Court stated that such aliens may o n ly be detained under that section "until it has been determined that there is no s ig n if ic a n t likelihood of removal in the reasonably foreseeable future." Id., 121 S.Ct. at 2 5 0 5 . The Court indicated that if removal is not reasonably foreseeable, the alien should b e released on conditions: [T ]h e habeas court must ask whether the detention in question exceeds a p e rio d reasonably necessary to secure removal. It should measure re a s o n a b le n e s s primarily in terms of the statute's basic purpose, namely, a s s u rin g the alien's presence at the moment of removal. Thus, if removal is n o t reasonably foreseeable, the court should hold continued detention u n re a s o n a b le and no longer authorized by statute. In that case, of course, th e alien's release may and should be conditioned on any of the various f o rm s of supervised release that are appropriate in the circumstances, and th e alien may no doubt be returned to custody upon a violation of those c o n d i t io n s . Id ., 121 S.Ct. at 2504. The Court further stated that, o n c e the alien provides good reason to believe that there is no significant lik e lih o o d of removal in the reasonably foreseeable future, the Government m u s t respond with evidence sufficient to rebut that showing. And for d e te n tio n to remain reasonable, as the period of prior postremoval c o n f in e m e n t grows, what counts as the "reasonably foreseeable future" c o n v e rs e ly would have to shrink. Id . at 2505. In the instant case, the Court finds, at the outset, that Petitioner is being detained p u rs u a n t to INA § 236(c), not INA § 241. Section 236 "governs the detention of aliens a g a in s t whom the Government has initiated removal proceedings, but whose removal p e rio d s have not yet commenced." Wang v. Ashcroft, 320 F.3d at 146. Section 241, on th e other hand, "governs the detention of aliens subject to final orders of removal," whose

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removal periods have commenced. Id. at 145. T h e determination of when an alien becomes subject to detention under INA § 241 rather than INA § 236 is governed by INA § 241(a)(1). Pursuant to § 2 4 1 (a )(1 )(B )(ii), "[i]f the removal order is judicially reviewed and if a court o rd e rs a stay of the removal of the alien [pending review]," then the removal p e rio d begins on "the date of the court's final order." Accordingly, where a c o u rt issues a stay pending its review of an administrative removal order, th e alien continues to be detained under § 236 until the court renders its d e c is io n . W a n g v. Ashcroft, 320 F.3d at 147 (internal quotation marks omitted). In Wang, the alien a rg u e d that he was being detained pursuant to INA § 236, even though his removal had n o t been "formally stayed" by a court. The Second Circuit did not discuss the c irc u m s ta n c e s under which an order of removal might be deemed stayed, in the absence o f a formal court order. Instead, the Court held that "to the extent that" W a n g might have h a d a claim under Section 236, it was moot for other reasons, which are not relevant to th is action. Wang v. Ashcroft, 320 F.3d at 147. In this case, Petitioner is seeking review o f his final administrative order of removal by the Second Circuit, and his removal is e f f e c tiv e ly stayed pursuant to an agreement between the Attorney General and the S e c o n d Circuit. Consequently, although Petitioner does not meet the precise definition of 8 U.S.C. § 1231(a)(1)(B)(ii), the Court nevertheless finds that, for purposes of this action, th e forbearance policy is the equivalent of a court-ordered stay of removal. Consequently, th e Court finds that Petitioner is being detained pursuant to INA § 236, and that his

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removal period has not yet begun.67 More specifically, as a criminal alien, Petitioner is b e in g detained under INA § 236(c), and he has no right to be released on bond.8 T h e issue before the Court, therefore, is whether Petitioner's detention, under INA

§ 236(c), for more than three years, all of which time is attributable to his attempt to
a p p e a l his final order of removal, without a bond hearing, violates the INA and/or the Due P ro c e s s Clause. The Court finds that it does not. As discussed earlier, in Demore v Kim the Supreme Court held that mandatory d e te n tio n of criminal aliens under INA § 236, without a bond hearing, "for the brief period n e c e s s a ry for their removal proceedings" was constitutional. Demore v. Kim, 123 S.Ct. at 1 7 1 2 . W ith regard to its use of the term "brief," the Supreme Court observed that d e te n tio n under INA § 236(c) has "a definite termination point," and, "in the majority of c a s e s ," "lasts for less than 90 days." Id., 123 S.Ct. at 1720. The Court added that, "the d e te n tio n at stake under § 1226(c) lasts roughly a month and a half in the vast majority of c a s e s in which it is invoked, and about five months in the minority of cases in which the a lie n chooses to appeal." Id., 123 S.Ct. at 1721. Although, here, Petitioner's detention has been far longer than five months, he has n o t shown that his continued detention is unreasonable or unjustified. Significantly, there

B u t see, D'Alessandro v. Mukasey, 628 F.Supp.2d 368 (W .D .N .Y . 2009) (Finding that detention w a s pursuant to INA § 241, where there was no court-ordered stay, and where parties agreed that d e te n tio n was pursuant to § 241). T o the extent that a reviewing Court m a y disagree, and find that Petitioner is being detained p u r s u a n t to INA § 241, this Court would nonetheless deny his petition, pursuant to Zadvydas, since he has n o t shown that there is no significant likelihood of his rem o v a l in the reasonably foreseeable future. But see, Scarlett v. U.S. Dep't of Homeland Security, 632 F.Supp.2d 214 (W .D .N .Y . 2009) ( F in d in g that crim in a l alien, who was not im m e d ia te ly taken into custody by DHS upon his release from s ta te custody, was being detained pursuant to INA § 236(a), not § 236(c), and was therefore entitled to a b o n d hearing).
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is absolutely no impediment to Petitioner's eventual deportation. If the Second Circuit d e c id e s Petitioner's appeal adversely to him, there is nothing preventing him from being d e p o rte d to the Dominican Republic.9 In this regard, the instant case is distinguishable f ro m Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003), a case cited by Petitioner, in which an e ig h te e n -m o n th period of detention under § 236(c) was held to be unreasonable, primarily b e c a u s e there was no chance that the alien would eventually be deported: [T ]h e district court determined that incarceration for one and one-half years a s part of a civil, nonpunitive proceeding when there was no chance of a c tu a l, final removal, was unreasonable. We agree. As of the September 2 1 , 2000 opinion and recommendation of the magistrate judge, Ly had been im p ris o n e d for a year and a half with no final decision as to removability in th e case. That decision as to removability was not made until nearly a m o n th later, after the magistrate judge recommended granting the writ of h a b e a s corpus. Ly served criminal sentences for his two convictions of a to ta l of 12 months; he spent considerably more time than that in INS c u s to d y awaiting a determination on removal. F u rth e r, any detention under IIRIRA must be reasonably related to the goal o f the statute. Zadvydas, 533 U.S. at 699-700, 121 S.Ct. 2491. The goal of p re -re m o v a l incarceration must be to ensure the ability of the government to m a k e a final deportation. The danger is that a criminal alien, upon receiving n o tic e of deportation proceedings, will flee. The actual removability of a c rim in a l alien therefore has bearing on the reasonableness of his detention p rio r to removal proceedings. Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491. B e c a u s e Ly was not removable, a year-and-a-half imprisonment awaiting re m o v a l proceedings was especially unreasonable. Id ., 351 F.3d at 271-272 (emphasis added). Petitioner's situation is more akin to that of th e alien in Adler v. U.S. Dep't of Homeland Security, wherein Judge Scheindlin held that a n eighteen-month period of detention under INA § 236(c) was reasonable: A d le r's pre-removal detention has lasted fifteen months. This is more than tw ic e as long as the maximum duration contemplated by the Demore Court.

M o r e o v e r , as m e n tio n e d earlier, Petitioner has not dem o n s tr a te d how his appeal before the S e c o n d Circuit has m e r it.

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However, there is no evidence in the record that the government has d ra g g e d its feet. Every adjournment in Adler's proceedings was upon Adler's m o tio n . Although it is Adler's right to seek relief from deportation, the delays c a u s e d by his motions should not be attributed to the government. Furthermore, Adler's detention is not unjustified. As the Demore Court n o te d , a primary justification for mandatory detention under 236(c) is to p re v e n t deportable aliens from fleeing. If an alien cannot be deported, this f lig h t justification would be inapplicable. But Adler does not contest his d e p o rta b ility. The primary justification for detention under 236(c)-curbing the ris k that a deportable alien will flee-therefore remains relevant to Adler's c a s e , and it cannot be said that his detention is unjustified. Id ., No. 09 Civ. 4093(SAS), 2009 W L 3029328 at *2 (S.D.N.Y. Sep. 22, 2009) (footnotes o m itte d ); see also, Demore v. Kim, 123 S.Ct. at 1720 (Stating that INA § 236(c) "n e c e s s a rily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings[.]"); but see, Monestime v. Reilly, -- F.Supp.2d --, N o . 10 Civ. 1374(W H P ), 2010 W L 1427672 (S.D.N.Y. Apr. 9, 2010) (Finding that Haitian c rim in a l alien was entitled to bond hearing where, due to earthquake in Haiti, deportations w o u ld be halted for at least two years). Petitioner's detention, while perhaps much longer th a n normal, cannot be said to be "indefinite" or "potentially permanent," such as that f a c e d by the aliens in Zadvydas or Ly. Instead, Petitioner's period of detention under § 2 3 6 (c ) will obviously end in the near future, since the Second Circuit is undoubtedly a d d re s s in g his appeal as expeditiously as possible, and since he is deportable in the e v e n t that his appeal is denied. Moreover, Petitioner does not allege, nor can he, that the delay in his case is a ttrib u ta b le to the Government. Much to the contrary, the final administrative order in this c a s e was entered more than three years ago, and since that time Respondents have b e e n willing and ready to deport Petitioner. Petitioner, though, on August 13, 2007, filed

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his appeal with the Second Circuit, and effectively stayed his deportation. Petitioner's a p p e a l has apparently been taking longer to resolve than normal, as a result of his u n tim e ly filing of the appeal, and Respondent's subsequent motion to dismiss the appeal a s untimely, which have necessitated the Second Circuit to address a threshold ju ris d ic tio n a l issue under the Suspension Clause. In that regard, as previously m e n tio n e d , the Second Circuit has consolidated Petitioner's case with several other cases ra is in g the same issue, and has appointed counsel to represent Petitioner. On facts g e n e ra lly similar to the ones presented in this case, insofar as there was no delay by the G o v e rn m e n t, another court in this circuit recently denied an alien's habeas petition: A t this point Mr. Andreenko's detention does not violate due process b e c a u s e there has been no showing that it was prolonged by the g o v e rn m e n t nor that it is likely to last indefinitely or for a lengthy additional p e rio d of time, nor that his ultimate removal is improbable. The petitioner h a s explained that he "is in the process of filing [ ] 440 motions to vacate his 2 0 0 5 controlled substance conviction in New York and his 2007 possession o f marijuana conviction in Fredericksburg, [Virginia] .... due to Padilla v. K e n tu c k y ," 599 U.S. ----, 130 S.Ct. 1473 (2010). (Pet. Letter at 1). However, th e probability of the petitioner's success in these planned attempts to v a c a te his previous convictions is speculative, and thus his likelihood of a v o id in g removal on this basis is too remote to warrant habeas relief. A n d re e n k o v. Holder, No. 09 Civ. 8535(CM)(JCF), 2010 W L 2900363 at *4 (S.D.N.Y. Jun. 2 5 , 2010) (Report & Recommendation by the Hon. James C. Francis IV, Magistrate J u d g e ); see also, Doherty v. Thornburgh, 943 F.2d 204, 211 (2d Cir. 1991) ("Although [the a lie n -p e titio n e r's ] litigation strategy is perfectly permissible, we hold that [he] may not rely o n the extra time resulting therefrom to claim that his prolonged detention violates s u b s ta n tiv e due process."); Miller v. Shanahan, No. 09 Civ. 9712 (W H P ), 2010 W L 4 8 1 0 0 2 (S.D.N.Y. Jan. 29, 2010) (Two-and-one-half year detention under INA § 236(c) did n o t violate alien's due process rights, where delay was not attributable to the Government,

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but instead was attributable to the alien's attempts to obtain cancellation of removal and to appeal his final administrative order of removal, and where the primary purpose behind IN A § 236(a), "curbing the risk that a deportable alien will flee," remained relevant.). Additionally, this is not a case where Petitioner faces indefinite detention, such as th a t faced by the aliens in Zadvydas and Ly. Much to the contrary, Petitioner can obtain h is release to the Dominican Republic at any time. In Zadvydas and Ly, there was no c o u n try that was willing to accept the criminal aliens, and they therefore faced the p ro s p e c t of permanent detention. Here, however, Petitioner is essentially remaining in c u s to d y voluntarily, rather than returning to the Dominican Republic and awaiting the o u tc o m e of his appeal there. In that regard, Petitioner sought a stay of deportation p e n d in g his appeal to the Second Circuit.10 Under such circumstances, Petitioner's c o n tin u e d detention does not violate the Due Process Clause. The Government is willing to release Petitioner at any time, provided that he returns to the Dominican Republic.11 A d d itio n a lly, the fact that Petitioner would rather remain in custody here than return to the D o m in ic a n Republic suggests that if he is released here, even with conditions, he might b e unwilling to comply with efforts to locate and deport him if his appeal is denied. F u rth e rm o re , as to Petitioner's contention that he is entitled to an individualized

T h e fact that Petitioner's m o tio n has not, to date, been granted, and that his deportation has in s te a d been stayed pursuant to the forbearance policy, is of little m o m e n t, since he clearly wanted his d e p o r ta tio n stayed, and since he could withdraw his request if he wanted and agree to be deported at any t im e . T h e Court recognizes that under INA § 236(c), which the Court finds is applicable, detention is m a n d a to r y. However, if Petitioner asked to have the stay dissolved, he would then be detained pursuant to INA § 241, and could be deported im m e d ia te ly. In m a k in g this observation, the Court in no way is s u g g e s tin g that Petitioner should be "punished" for appealing to the Second Circuit. Rather, as the S e c o n d Circuit stated in Doherty v.Thornburgh, "[a]lthough [the alien-petitioner's] litigation strategy is p e r f e c tly perm is s ib le , . . . [he] m a y not rely on the extra tim e resulting therefrom to claim that his prolonged d e te n tio n violates substantive due process." 943 F.2d at 211.
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bond hearing, pursuant to, inter alia, Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005) ("Tijani") a n d Casas-Castrillon v. Dep't of Homeland Security, 535 F.3d 942 (9 th Cir. 2008) ("CasasC a s trillo n "), the Court disagrees. In Tijani, a panel of the Ninth Circuit, with one judge d is s e n tin g , and with essentially no analysis, held that a criminal alien, who had been d e ta in e d for almost three years, under INA § 236(c), was entitled to a bail hearing, b e c a u s e the removal process was not expeditious. Id., 430 F.3d at 1242 ("To avoid d e c id in g the constitutional issue, we interpret the authority conferred by § 1226(c) as a p p lyin g to expedited removal of criminal aliens."). Subsequently, in Casas-Castrillon, a n o th e r Ninth Circuit panel expanded the holding in Tijani, and held that, "[t]he statutory s c h e m e governing the detention of aliens in removal proceedings is not static; rather, the A tto rn e y General's authority over an alien's detention shifts as the alien move through d if f e re n t phases of administrative and judicial review." Id., 535 F.3d at 945. The Court f u rth e r reasoned that, even though the criminal alien had initially been detained pursuant to INA § 236(c), his detention eventually "shifted to § 1226(a), which gives the Attorney G e n e ra l discretionary authority" to release him. Id., 535 F.3d at 947-48. Specifically, the C o u rt held that the alien ceased being detained under § 236(c) when the BIA dismissed h is appeal. Id. at 948 ("Once Casa's proceedings before the BIA were complete, the A tto rn e y General's authority to detain him under § 1226(c) ended and that authority s h if te d instead to § 1226(a).") (emphasis added). The Tijani and Casas-Castrillon d e c is io n s are not binding on this Court, and this Court, respectfully, does not find them p e rs u a s iv e in any event. In that regard, Casas-Castrillon's statement, that detention of c rim in a l aliens under INA § 236(c) ends upon the completion of BIA proceedings, is c o n tra ry to decisions of the Second Circuit, which hold that criminal aliens, who are

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appealing the dismissal of their actions by the BIA, before the Second Circuit, where a s ta y is in place, remain detained pursuant to INA § 236(c). See, e.g., Wang v. Ashcroft, 3 2 0 F.3d at 146, n. 25 (Stating that, "for most aliens convicted of crimes, detention prior to th e removal period [where the alien appeals and deportation is stayed] is mandatory u n d e r § 236;" such statement is referring to § 236(c), not § 236(a), since detention under

§ 236(a) is not mandatory); Abimbola v. Ridge, No. 05-2700-cv,181 Fed.Appx. 97, 98 (2d
C ir. May 18, 2006) (Stating that criminal alien, whose proceedings before the BIA were c o m p le te , and who was appealing to a Circuit Court of Appeals, was detained pursuant to IN A § 236(c)). As discussed above, Petitioner, as a criminal alien, might be detained p u rs u a n t to INA § 236(c) or § 241(a)(6), but he is not detained pursuant to § 236(a).12 C O N C L U S IO N A c c o rd in g ly, the petition is denied and this action is dismissed. Pursuant to 28 U .S .C . § 2253, the Court declines to issue a certificate of appealability, since Petitioner h a s not made a substantial showing of the denial of a constitutional right. S o Ordered. D a te d : Rochester, New York September 10, 2010 ENTER:

/s / Charles J. Siragusa CHARLES J. SIRAGUSA U n ite d States District Judge

A s Petitioner adm its , one of the cases upon which he relies, Alli v. Decker, 644 F.Supp.2d 535, 5 4 2 (M.D. Penn. 2009), expressly rejects Casas-Castrillon's reasoning on this point, correctly observing th a t it is contrary to Congress's intent, since it "funnels deportable crim in a l aliens to § 1226(a), a portion of th e statute which Congress never intended to apply to such aliens, and requires the Attorney General to e x e r c is e the very discretion over release of crim in a l aliens which Congress intended to restrict."

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