United States District Court, W.D. New York
March 15, 2004.
EMILIO REYES, 01-R-5376, Petitioner,
ACTING DIRECTOR FOR THE BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, Respondent.
The opinion of the court was delivered by: MICHAEL TELESCA, Senior District Judge
Petitioner Emilio Reyes, who is currently incarcerated at
Livingston Correctional Facility and is subject to a final order
of removal, seeks relief pursuant to 28 U.S.C. § 2241 as more
fully set forth in the petition. At this time, the Court will
not, in the absence of a more complete record, make a
determination with respect to whether or not the issues raised in
petitioner's response (Docket No. 4) to the Court's Order to Show
Cause as to why the petition should not be dismissed for
petitioner's failure to exhaust (Docket No. 3), see
Theodoropoulos v. I.N.S., 368 F.3d 162, 169-172 (2d Cir. 2004),
establish "cause" and "prejudice", see Carmona v. United
States Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001), or a
"fundamental miscarriage of justice" if the claim were not
reviewed, Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002),
cert. denied, 537 U.S. 955 (2002), in light of the fact that
petitioner can no longer appeal the Immigration Judge's
determination to the Bureau of Immigration Appeals, 8 U.S.C. § 240.15, or file a motion to reopen the removal proceedings, 8.
U.S.C. § 1229a(c)(6). Petitioner asserts that he was prevented
from filing an appeal because he was in punitive segregation at
the time the appeal was to be filed. (Docket No. 4). Respondent,
as set forth below, is free to file a motion to dismiss the
petition on these grounds. Accordingly,
IT HEREBY IS ORDERED as follows:
1. Petitioner's removal or deportation is stayed pending
disposition of his habeas proceeding in this Court. Respondents
may, during the pendency of this proceeding in this Court, move
to lift the stay of removal or deportation.
2. Within 45 days of the service of this order, respondent
shall file an answer to the application with the Clerk of Court
(and also serve a copy upon the petitioner) which shall respond
to the allegations of the application and shall state, as to
every ground raised by the petitioner, whether the petitioner has
exhausted administrative remedies. If any ground is alleged not
to have been exhausted, respondent shall identify such ground.
Alternatively, in the appropriate case, respondent may file a
motion to dismiss the application, accompanied by pertinent
exhibits which demonstrate that an answer to the application is
unnecessary, by no later than 45 days from service of this
Respondent also shall file by the above date a memorandum of
law with the Clerk of Court (and also serve a copy upon the petitioner) addressing each of the issues raised in the petition
and including citations of relevant supporting authority.
Respondent is directed to accompany all citations to sections of
the Immigration and Naturalization Act with reference to the
appropriate sections of 8 U.S.C.
Petitioner may within 25 days upon receipt of the answer to
file a written response to the answer and memorandum of law (or
motion to dismiss).
3. The Clerk of Court shall serve a copy of the application,
together with a copy of this order, by certified mail, upon the
Buffalo Field Office Director, Detention and Removal Office,
Immigration and Customs Enforcement, Department of Homeland
Security, 138 Delaware Avenue, Buffalo, New York 14202;
New York City Field Office Director, Detention and Removal
Office, Immigration and Customs Enforcement, Department of
Homeland Security, 26 Federal Plaza, New York, New York 10278-0127
Secretary, U.S. Department of Homeland Security, Washington,
Acting Director, Bureau of Immigration and Customs
Enforcement, 425 I Street, NW Washington, DC 20536;
Attorney General of the United States, Main Justice Building,
10th and Constitution Avenues N.W., Washington, DC 20530; United States Attorney for the Western District of New York,
138 Delaware Avenue, Buffalo, New York 14202;
James W. Grable, District Counsel for the Department of
Homeland Security, 130 Delaware Avenue, Room 203, Buffalo, New
THE PETITIONER MUST FORWARD A COPY OF ALL FUTURE PAPERS AND
CORRESPONDENCE TO THE ATTORNEY APPEARING FOR THE RESPONDENT.
© 1992-2004 VersusLaw Inc.