Thompson v. Lynch et al

Filing 14

DENYING ORDER denying 10 Motion for Summary Judgment and denying petition for a writ of habeas corpus. Thompsons procedurally based motion for summary judgment [#10] is denied. As for the merits of the petition, based upon all of the foregoing, the court finds that 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. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure. The Clerk of the Court is directed to terminate this action.. Signed by Hon. Charles J. Siragusa on 1/20/17. Copy of this decision and order and the NEF mailed to pro se petitioner at Buffalo Federal Detention. (KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
NYRAN D. THOMPSON, A# 037-461-359,
Petitioner,

DECISION AND ORDER

-vs16-CV-6608 (CJS)
LORETTA E. LYNCH, Attorney General of the
United States of America, et al.,
Respondents.
__________________________________________

INTRODUCTION
In this pro se petition filed pursuant to 28 U.S.C. § 2241, Nyran D. Thompson
(“Thompson” or “Petitioner”) argues, inter alia, that his continued detention in Respondents'
custody is unlawful, based on the Supreme Court's decision in Zadvydas v. I.N .S., 533
U.S. 678, 121 S.Ct. 2491 (2001). Thompson’s application for a writ of habeas corpus is
denied.
BACKGROUND
Thompson, born in 1976, is a native and citizen of Jamaica, who has resided in the
United States since 1981. After being convicted of various controlled substance offenses,
the Department of Homeland Security (“DHS”) ordered that Thompson be removed from
the United States. Thompson is currently appealing his final order of removal to the U.S.
Court of Appeals for the Second Circuit. The Second Circuit has stayed Thompson’s
removal pending the outcome of his appeal; otherwise, there is no apparent impediment
to his removal to Jamaica. While awaiting the outcome of his appeal, Thompson remains
in DHS custody at the Federal Detention Facility in Batavia, New York.
More specifically, the facts underlying Thompson’s continued detention are set forth
in an affidavit from DHS Deportation Officer Juanita Payan (“Payan”), as follows, in
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pertinent part:
Thompson is a native and citizen of Jamaica, who was admitted to the
United States at New York, New York, on about October 16, 1981, as a
lawful permanent resident.
Thompson has been convicted of criminal offenses in the United States as
follows:
a. On or about July 11, 1997, Thompson was convicted in the
Binghamton, New York City Court, of Criminal Trespass in the 2nd
Degree in violation of New York State Penal Law Section 140.15. For
this offense, he was granted a conditional discharge.
b. On or about May 4, 2001, Thompson was convicted in the
Chemung County Court, State of New York, of Resisting Arrest in
violation of New York State Penal Law Section 205.30, and Reckless
Driving, in violation of New York State Vehicle and Traffic Law Section
1212. For this offenses, he was sentenced to a term of incarceration
of one (1) year.
c. On or about July 17, 2001, Thompson was convicted in the Elmira,
New York City Court, of Resisting Arrest in violation of New York State
Penal Law Section 205.30. For this offense, he was sentenced to a
60 day term of incarceration.
d. On or about December 4, 2007, Thompson was convicted in the
Broome County Court, State of New York, of Criminal Possession of
a Weapon in the 2nd Degree, to wit: a firearm in violation of New York
State Penal Law Section 265.03(3). For this offense, he was
sentenced to a 42 month term of incarceration.
On May 1, 2007, Thompson was encountered by officers of the DHS
Criminal Alien Program while he was incarcerated at the Monroe County Jail,
Rochester, New York.
On May 24, 2010, Thompson filed with U.S. Citizenship and Immigration
Services (“USCIS”), an Application for Certificate of Citizenship (Form
N-600). Exhibit A, p. 3. On June 26, 2015, USCIS denied Thompson’s N-600
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application.
Thompson was placed in immigration removal proceedings by a Notice to
Appear, dated June 11, 2010, which charged him pursuant to Immigration
and Nationality Act (“INA”) § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C), with
being subject to removal from the United States as an alien who has been
convicted of purchasing, selling, offering for sale, exchanging, using, owning,
possessing, or carrying, or of attempting or conspiring to purchase, sell, offer
for sale, exchange, use, own, possess, or carry, in violation of any law, any
weapon, part, or accessory which is a firearm or destructive device.
On June 15, 2010, Thompson was received into DHS custody upon
completion of his sentence with the New York State Department of
Corrections and Community Supervision.
On October 20, 2010, an immigration judge (“IJ”) granted Thompson
cancellation of removal under INA § 240A(a), 8 U.S.C. § 1229b(a), and
terminated the immigration proceedings. Thompson was subsequently
released from DHS custody.
[Subsequently,] Thompson [was] convicted of additional criminal offenses in
the United States as follows:
a. On or about April 26, 2013, Thompson was convicted in the
Binghamton,New York City Court, of Resisting Arrest in violation of
New York State Penal Law Section 205.30. For this offense, he was
sentenced to a one (1) year term of incarceration.
b. On or about May 7, 2014, Thompson was convicted in the Court of
Common Pleas of Monroe County, Pennsylvania, of Manufacture,
Delivery, or Possession with Intent to Manufacture or Deliver Cocaine
in violation of Title 35, Section 780-113(A30) of the Pennsylvania
Criminal Code. For this offense, he was sentenced to a minimum of
11 months, 15 days, up to a maximum of one (1) year, 11 months
incarceration.
On April 21, 2015, Thompson was encountered by officers of the DHS

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Criminal Alien Program while he was incarcerated at the Monroe County Jail,
Rochester, New York. Thompson was taken into DHS custody and served
with a NTA which charged him, pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C.
§ 1227(a)(2)(B)(i), with being subject to removal from the United States as
an alien who has been convicted of a controlled substance offense and
pursuant to INA § 237(a)(2)(B)(iii), 8 U.S.C. 1227(a)(2)(B)(iii), as an alien
who has been convicted of an aggravated felony as defined in INA §
101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), an offense relating to the illicit
trafficking in a controlled substance.
On October 13, 2015, an IJ ordered Thompson removed from the United
States to Jamaica. Thompson appealed the IJ’s decision to the Board of
Immigration Appeals.
On December 30, 2015, an IJ conducted a bond hearing in Thompson’s
case pursuant to United States v. Lora, 804 F.3d 601 (2d Cir. 2015). On
February 16, 2016, the IJ denied Thompson’s request to be released on
bond. Thompson appealed the IJ’s decision to the BIA.
On February 10, 2016, the BIA dismissed Thompson’s appeal of the IJ’s
order of removal.
On February 19, 2016, DHS sent a presentation packet to the Embassy of
Jamaica (“Embassy”) in Washington, D.C., requesting that a travel document
be issued for Thompson’s removal.
According to DHS case notes pertaining to Thompson, on February 24,
2016, Thompson was interviewed by a representative of the Embassy.
On February 29, 2016, Thompson 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 10, 2016, along with a request for stay of removal. Because
Thompson filed a motion for stay of removal in his petition for review case,
DHS was prevented from executing the immigration order of removal against
Thompson due to a forbearance agreement between DHS and the Second
Circuit Court.
***

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In accordance with immigration regulations, DHS reviewed Thompson’s
custody status in May 2016. On or about May 9, 2016, Thompson was
notified that DHS determined to continue his detention. DHS determined that
based upon the totality of information available in Thompson’s case that he
would be a threat to the community if he were to be released from custody.
On May 11, 2016, the BIA dismissed Thompson’s appeal of the IJ’s order of
February 16, 2016, which had denied Thompson’s request for release on
bond following a Lora hearing.
An additional review of Thompson’s custody status was conducted by DHS
Headquarters Removal and International Operations (“HQRIO”) in August
2016. As part of that review, a panel was convened on August 8, 2016, at the
Buffalo Federal Detention Facility in Batavia, New York, to conduct an
in-person interview of Thompson.
Following completion of the file review and interview, Thompson was notified
on or about August 24, 2016, that DHS determined to continue his detention
in DHS custody.
On August 23, 2016, the Second Circuit Court granted Thompson’s motion
for stay of removal and his request for assignment of pro bono counsel.
Thompson’s petition for review remains pending before the Second Circuit
Court.
There is no institutional barrier to Thompson’s removal to Jamaica; in recent
years, DHS has successfully repatriated thousands aliens to Jamaica. For
example, DHS reports show that in fiscal year (“FY”) 2012, a total of 1,319
aliens were repatriated to Jamaica; in FY 2013, 1,108 aliens were repatriated
to Jamaica; and in FY 2013, 1,027 aliens were repatriated to Jamaica.
At the present time, the only obstacle to Thompson’s immediate removal to
Jamaica in accordance with the order of removal is the pending stay order
issued by the Second Circuit Court.

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Based upon the history of removals to Jamaica and the circumstances of
Thompson’s case, DHS has an expectation that Thompson will be removed
from the United States once the Second Circuit proceedings are concluded.
At present, there is an expectation that Thompson will be removed from the
United States in the reasonably foreseeable future.
Declaration of Juanita Payan, Docket No. [#8-1] (citations and paragraph numbering
omitted).
On August 30, 2016, Thompson filed the subject petition. (Docket No. [#1]).
Liberally construing the petition, Thompson maintains that his continued detention is
unlawful for the following reasons: 1) “his removal is not significantly likely to occur in the
foreseeable future;”1 and 2) he has been in custody longer than six months, and is neither
a danger to society nor a flight risk.2 More specifically, Thompson alleges the following
three claims: 1) his continued detention violates 8 U.S.C. § 1231(a)(6) as interpreted by
the Supreme Court in Zadvydas; 2) his continued detention violates the Fifth Amendment
because it is not narrowly tailored to serve a compelling government interest; and 3) his
continued detention violates the Fifth Amendment’s Procedural Due Process Clause
because he has been incarcerated more than six months without a meaningful review of
his detention.
On October 28, 2016, Respondents filed a timely response to the Petition.3
Respondents point out, initially, that to the extent that Thompson is attempting to challenge
the underlying order of removal, his claim is barred by 8 U.S.C. § 1252. The Court, though,

1

Petition [#1] at pp. 5-6, 9-10, 14, 17.

2

Petition [#1] at pp. 10-11, 15-16.

3

On November 3, 2016, Thompson filed a motion for summary judgment, on the ground that
Respondents had failed to file a timely response as ordered by the Court. See, Order [#3]. However,
Thompson was mistaken on that point, as Respondents filed their response within forty-five days of the
date the Order was served on them (September 13, 2016), as the Court directed. (Thompson
erroneously calculated the response date from the date of entry, not date of service). Accordingly,
Thompson’s summary judgment motion [#10] is denied.
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does not interpret his petition as making such a claim. Otherwise, Respondents generally
indicate that Petitioner’s detention is not indefinite, since the only reason he remains in
custody is because he obtained a stay of his removal pending the outcome of his appeal
to the Second Circuit; that his detention is therefore pursuant to INA § 236, and not INA
§ 241 as he supposes;4 and that his procedural due process rights have not been violated,
since DHS has conducted regular reviews of his continued detention.5
On November 10, 2016, Thompson filed a reply/traverse [#11], in which he
reiterates his argument that his continued detention is unlawful, notwithstanding the stay
of removal proceedings pending his appeal to the Second Circuit.6 Thompson also
reiterates his claim that he poses no risk to the public if released, despite his significant
criminal history.
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, 121 S.Ct. 2491, 150 L.Ed.2d
653 (2001) (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
4

On this point, Respondents cite Wang v. Ashcroft, 320 F.3d 130, 147 (2d Cir. 2003) and
Garcia v. DHS, 422 Fed.Appx. 7 (2d Cir. May 11, 2011). Nevertheless, Respondents contend that
Thompson’s continued detention is appropriate under either § 236 or § 241.
5

See, e.g., Respondents’ Answer and Return [#8] at

6

¶ ¶ 23-26, 19-21, 13-14.

Thompson also devotes a significant amount of space to alleging that Respondents have
attempted to mislead the Court, but the point on which he focuses (whether he signed a particular
document) is irrelevant to the Court’s determination, and Respondents have admitted that their
responsive papers were mistaken about the subject point.
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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. Because Thompson
obtained a stay pending the Second Circuit’s review of his final order of removal, the Court
views him as being confined pursuant to INA § 236. See, Morales v. Holder, No.
13-CV-1089-JTC, 2014 WL 1117827, at *4 (W.D.N.Y. Mar. 19, 2014) (“[W]here a court
issues a stay pending its review of an administrative removal order, the alien continues to
be detained under § 236 until the court renders its decision.”).7 Nevertheless, Thompson’s
continued detention would be appropriate under either § 236 or § 241.
To begin with, INA § 236 provides, in pertinent parts, as follows:
(a) Arrest, detention, and release.
On a warrant issued by the Attorney General, an alien may be arrested and
detained pending a decision on whether the alien is to be removed from the
United States .... Except as provided in subsection(c) ... and pending such
decision, the Attorney General—
(1) may continue to detain the arrested alien; and
(2) may release the alien on—
(A) bond of at least $1,500 with security approved by, and
containing conditions prescribed by the Attorney General; or
(B) conditional parole....
...
7
As discussed by the Second Circuit in Wang v. Ashcroft, the 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 § 241(a)(1)(B)(ii), “[i]f the removal order is judicially reviewed and if a court orders a stay of
the removal of the alien [pending review],” then the removal period begins on “the date of the court's
final order.” Accordingly, where a court issues a stay pending its review of an administrative removal
order, the alien continues to be detained under § 236 until the court renders its decision. Wang, 320
F.3d at 147.

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(c) Detention of criminal aliens.
(1) Custody
The Attorney General shall take into custody any alien who—
...
(B) is deportable by reason of having committed any offense
covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of
this title,
...
when the alien is released, without regard to whether the alien
is released on parole, supervised release, or probation, and
without regard to whether the alien may be arrested or
imprisoned again for the same offense.
8 U.S.C. § 1226(a)(1)-(2) and (c)(1).

Thompson is subject to mandatory detention

pursuant to 8 U.S.C 1226(c)(1), because he is deportable by reason of having committed
offenses covered by 8 U.S.C. § § 1227(a)(2)(B).
On the other hand, INA § 241 provides authority to detain an alien once the decision
on removability is made by the IJ, and the IJ's removal order becomes final. In that regard,
INA § 241(a) requires the Attorney General to accomplish removal within a period of ninety
days (the “removal period”), commencing on the latest of the following dates:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of
the removal of the alien, the date of the court's final order.
(iii) If the alien is detained or confined (except under an immigration
process), the date the alien is released from detention or confinement.
8 U.S.C. § 1231(a)(1)(B).
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 certain criminal aliens—like

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petitioner—who have been ordered removed due to conviction of an enumerated crime,
or determined to be a threat to the community or risk of flight, beyond the expiration of the
ninety-day removal period. See, INA § 241(a)(6).
In Zadvydas, the Supreme Court was presented with the challenge of reconciling
the INA's apparent authorization of indefinite post-removal order detention with the Fifth
Amendment's prohibition against depriving a person of their liberty without due process.
The Court determined that INA § 241(a) authorizes detention after entry of an
administratively final order of deportation or removal for a period that is “reasonably
necessary” to accomplish the alien's removal from the United States. Zadvydas, 533 U.S.
at 699–700. Recognizing the practical necessity of setting a “presumptively reasonable”
time within which to secure removal, the court adopted a period of six months “for the sake
of uniform administration in the federal courts ....” Id. at 701.
After this 6–month period, once the alien provides good reason to believe
that there is no significant likelihood of removal in the reasonably foreseeable
future, the Government must respond with evidence sufficient to rebut that
showing. And for detention to remain reasonable, as the period of prior
postremoval confinement grows, what counts as the “reasonably foreseeable
future” conversely would have to shrink. This 6–month presumption, of
course, does not mean that every alien not removed must be released after
six months. To the contrary, an alien may be held in confinement until it has
been determined that there is no significant likelihood of removal in the
reasonably foreseeable future.
Id.
By contrast, no such time limitation has been applied to the detention of criminal
aliens under INA § 236(c), since the detention has “a definite termination point”—i.e., upon
completion of the administrative removal proceedings and the issuance of a final order of
removal. Demore v. Kim, 538 U.S. 510, 529, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003)
(upholding constitutionality of mandatory detention of criminal aliens under INA § 236(c)).
10

In both Demore and Zadvydas, the Supreme Court discussed and distinguished the
different purposes of pre- and post-removal order detention, emphasizing the material
difference between the potentially indefinite post-removal period detention under INA §
241(a)(6), and the definite duration of pre-final order detention under INA § 236(c). See
Demore, 538 U .S. at 526–529; Zadvydas, 533 U.S. at 690–91, 697.
In the instant case, although the IJ issued a final order of removal against
Thompson, he appealed that determination to the Second Circuit and obtained a stay of
removal proceedings pending the outcome of the appeal. As a result of that stay order,
Thompson’s detention is authorized pursuant to INA § 236, and his continued detention
in DHS custody pending the Second Circuit's ruling on his petition for review is in
accordance with controlling Second Circuit law. See Wang, 320 F.3d at 147 (“[W]here a
court issues a stay pending its review of an administrative removal order, the alien
continues to be detained under § 236 until the court renders its decision.”). Furthermore,
as a result of the circuit court's stay of removal, the ninety-day statutory removal period
described in INA § 241 has not commenced, and will not commence until the circuit court
issues a final order on the pending petition for review and lifts the stay. See id.; see also
INA § 241(a)(1)(B)(ii) (if removal order is judicially reviewed and court orders a stay of
removal, removal order becomes final on the date of court's final order).
Alternatively, even if Thompson was currently being detained pursuant to INA § 241,
as he seems to believe, he would not be entitled to habeas relief because he has not
shown that there is no significant likelihood of removal in the reasonably foreseeable
future. To the contrary, the record indicates that in the event that the Second Circuit
affirms the final order of removal, Thompson will be expeditiously removed to Jamaica.
Moreover, because petitioner's removal has been delayed by his own actions in
pursuit of relief in the federal courts, neither his detention pending the circuit court's final

11

ruling, nor its duration, can be found to constitute a violation of petitioner's rights under the
due process clause of the Fifth Amendment. See Flores v. Holder, 977 F.Supp.2d 243
(W.D.N.Y. June 7, 2013) (citing Doherty v. Thornburgh, 943 F.2d 204, 205 (2d Cir.1991)
(petitioner cannot rely on delays resulting from litigation strategy to claim that his eight-year
detention violates substantive due process) (other citations omitted).
There is likewise no merit to petitioner's contention that DHS was not authorized to
detain him following the circuit court's grant of his request for a stay of removal. As
discussed above, INA § 236(a) authorizes the arrest of an alien on a warrant and detention
pending a decision on removability, and § 236(c) not only provides for mandatory detention
of criminal aliens—such as petitioner—who have been convicted of serious and violent
aggravated felony offenses, but also mandates that criminal aliens be taken into custody
“when the alien is released, without regard to whether the alien is released on parole,
supervised release, or probation, and without regard to whether the alien may be arrested
or imprisoned again for the same offences.” 8 U.S.C. § 1226(c). Unless and until the circuit
court vacates the removal order or otherwise rules in petitioner's favor on the petition for
review, petitioner remains a criminal alien subject to removal and subject to lawful
mandatory detention in DHS custody under the authority of the INA.
CONCLUSION
Thompson’s procedurally-based motion for summary judgment [#10] is denied.8
As for the merits of the petition, based upon all of the foregoing, the court finds that
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. The Court hereby certifies,
pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in

8

See, footnote 3, above.
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good faith and leave to appeal to the Court of Appeals as a poor person is denied.
Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal
in forma pauperis should be directed on motion to the United States Court of Appeals for
the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate
Procedure. The Clerk of the Court is directed to terminate this action.
SO ORDERED.
Dated: Rochester, New York
January 20, 2017

ENTER:

/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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