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REYES v. ACTING DIRECTOR FOR THE BUREAU OF CITIZENSHIP

United States District Court, W.D. New York


March 15, 2004.

EMILIO REYES, 01-R-5376, Petitioner,
v.
ACTING DIRECTOR FOR THE BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, Respondent.

The opinion of the court was delivered by: MICHAEL TELESCA, Senior District Judge

ORDER

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 order.

  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 following:

  • 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, D.C. 20528;

  • 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 York 14202.

  THE PETITIONER MUST FORWARD A COPY OF ALL FUTURE PAPERS AND CORRESPONDENCE TO THE ATTORNEY APPEARING FOR THE RESPONDENT.

  SO ORDERED.

20040315

© 1992-2004 VersusLaw Inc.



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