The opinion of the court was delivered by: William M. Skretny United States District Judge
On July 7, 2005, pro se Petitioner Ho Kai Tam filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.*fn1 Presently before this Court is Respondent Department of Homeland Security's Motion to Dismiss Petitioner's petition.*fn2 For the reasons discussed below, Respondent's motion is granted and Petitioner's nationality/citizenship claim will be transferred to the United States Court of Appeals for the Second Circuit, where jurisdiction is proper.
The pertinent facts are undisputed. Petitioner is a native and citizen of Hong Kong. (Administrative Record ("A.R.") 8.*fn3 ) Petitioner entered the United States as a lawful permanent resident on or about July 2, 1996. (A.R. 8.) On May 27, 2004, Petitioner pled guilty to committing mail fraud in violation of 18 U.S.C. § 1341. (A.R. 38-54.) He was sentenced to a 3-month term of imprisonment on September 24, 2004. (A.R. 39.) Based on this criminal conviction, the Department of Homeland Security, Bureau of Immigration and Customs Enforcement ("ICE"), initiated removal proceedings against Petitioner. (A.R. 3-7.)
On December 17, 2004, ICE served Petitioner with a Notice to Appear. (A.R. 3-7.) Therein, Petitioner was charged as removable from the United States based on his conviction for an aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). (A.R. 5.) On or about December 23, 2004, Petitioner was taken into custody pending the outcome of his removal proceedings. (A.R. 2.)
On or about July 11, 2005, an Immigration Judge ordered Petitioner removed from the United States to Hong Kong based on the charges in the Notice to Appear. (A.R. 1.) Petitioner did not file an appeal of the Immigration Judge's decision within the allotted 30-day time period for appeals. (Korzak Decl., ¶ 12.) Consequently, the Immigration Judge's July 11, 2005 Order of Removal is the final order of removal in this case. See 8 C.F.R. § 241.1; 8 C.F.R. § 1241.1(c).
It appears as though Petitioner asserted that he was a national or citizen of this country when he appeared before the Immigration Judge. (A.R. 8.) On or about January 4, 2003, Petitioner filed an Application for Naturalization with the Department of Homeland Security, United States Citizenship and Immigration Services ("CIS"). (Petition, Exhibit A.) On June 3, 2005, prior to the Immigration Judge's Order of Removal, CIS denied Petitioner's application for citizenship. (A.R. 23.)
In his petition, Petitioner challenges his continued detention and asserts that he is a national or citizen of the United States. He seeks release from custody and a declaratory judgment.
A. Petitioner's Continued Detention
Generally, the government has ninety days after the entry of a final order of removal in which to effectuate an alien's removal from the United States. See 8 U.S.C. § 1231(a)(1)(A); see also 8 U.S.C. § 1231(a)(1)(B) (defining the beginning of the removal period). This 90-day period is referred to as the "removal period." 8 U.S.C. § 1231(a)(1)(A). In the case of a criminal alien, detention during the removal period is required by 8 U.S.C. § 1231(a)(2).
In addition, criminal aliens may be detained beyond the removal period for such time as is reasonably necessary to accomplish their removal from the United States. Zadvydas v. Davis, 533 U.S. 678, 699-701, 121 S.Ct. 2491, 2503-05,150 L.Ed.2d 653 (2001); Pan v. Ashcroft, No. 04-CV-6434, 2005 WL 1398601, at *4-*6 (W.D.N.Y. 2005) (discussing Zadvydas); 8 U.S.C. § 1231(a)(6).In Zadvydas, the Supreme Court determined that a period of six months beyond the removal period is presumptively reasonable. 533 U.S. at 701. An alien may challenge his continued detention beyond this 6-month period by setting forth good reason to believe that there is no significant likelihood of his removal in the reasonably foreseeable future. Id. at 699-701. It is then the government's burden to come forth with evidence sufficient to rebut the alien's showing. Id. Importantly, the Court noted that release ...