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Reyes-Cardenas v. Gonzales

April 30, 2007

RICHARD ALBERTO REYES-CARDENAS PETITIONER,
v.
ALBERTO R. GONZALES, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.

ORDER

Petitioner Richard Alberto Reyes-Cardenas ("Petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a cross-motion for release. On August 7, 2006, Magistrate Judge Ronald L. Ellis issued a Report and Recommendation ("Report"), to which Petitioner timely objected, recommending that the Court deny both the § 2241 petition and the cross-motion for release. For the reasons set forth below, the Court adopts the Report.

I. Background

The Report, familiarity with which is assumed, thoroughly recounts the background of this case; the Court repeats the facts here only as necessary. In March 2000, Petitioner was convicted of selling marijuana in the fourth degree and possession of a weapon in the fourth degree. He was sentenced to serve two concurrent jail terms of sixty days. On April 20, 2000, the former Immigration and Naturalization Service initiated removal proceedings against Petitioner. He has been in federal immigration custody since August 7, 2000.

On April 1, 2004, Petitioner filed the instant § 2241 petition and cross-motion for release, arguing: (1) that his prolonged detention violates his substantive and procedural due process rights; and (2) that the immigration judge violated his due process rights by denying his application for cancellation of removal. On September 15, 2005, this Court bifurcated Petitioner's detention and removal claims, pursuant to the REAL ID Act, Pub. L. No. 109-13, § 106, 119 Stat. 231 (May 11, 2005). Petitioner's collateral challenge to his removal order is pending before the Fifth Circuit.

II. Standard of Review

When a magistrate judge issues a report and recommendation, the district court's standard of review depends on whether objections are filed. See Nuetzel v. Walsh, No. 00-CV-8776, 2006 WL 2742000, at *1, 2006 U.S. Dist. LEXIS 69583, at *1 (S.D.N.Y. Sept. 26, 2006). "'If no objections are filed, or where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition, reviewing courts should review a report and recommendation for clear error.'" Id. (quoting Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006)). However, "where objections . . . are 'specific and . . . address only those portions of the proposed findings to which the party objects,' district courts should conduct a de novo review of the issues raised by the objections." Nuetzel, 2006 WL 2742000, at *1, 2006 U.S. Dist. LEXIS 69583, at *1 (quoting Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 381-82 (W.D.N.Y. 1992)). The Court notes that "pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read 'to raise the strongest arguments that they suggest.'" Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).

III. Discussion

A. Jurisdiction and Venue

Neither party has objected to the Report's recommendation that this Court may properly retain jurisdiction over Petitioner's § 2241 petition or its conclusion that venue is proper in the Southern District of New York. The Court has reviewed the Report, and finds its analysis pertaining to jurisdiction and venue to be well-reasoned and free of any "clear error on the face of the record." Fed. R. Civ. P. 72(b) advisory committee's note; see also Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). The Court therefore accepts and adopts the Report's recommendation that this Court retain jurisdiction over Petitioner's § 2241 petition and its conclusion that venue is proper in this district.

B. Petitioner's Objections

1. The Report Correctly Concludes that Petitioner is Being Held Under INA § 241(a)

Petitioner argues that the Report wrongly concluded that he is being detained under INA § 241(a), 8 U.S.C. § 1231(a); he believes that he is being detained under INA § 236(c)(1), 8 U.S.C. § 1226(c), which governs detention of aliens who are in removal proceedings but not yet subject to a final order of removal. Under INA § 241(a), the Government must remove aliens who have been ordered removed from the United States within a 90-day "removal period." 8 U.S.C. § 1231(a)(1)(A). The 90-day removal period begins when an order of removal becomes "administratively final" or, if the removal order is judicially reviewed and the court orders a stay of removal, "on the date of the court's final order." Id. § 1231(a)(1)(B)(i)-(ii). Here, the Board of Immigration Appeals (the "BIA") issued a final order of removal on July 24, 2003. Petitioner filed a petition for review, which the Fifth Circuit denied on March 23, 2004. Thus, Petitioner has been subject to a final order of removal since March 23, 2004, and is therefore being detained under INA § 241(a).

Petitioner argues that his removal period has not yet commenced, because he is under a judicially ordered stay of removal. That stay, however, does not pertain to Petitioner's direct petition for review; instead, the current stay pertains to Petitioner's § 2241 petition. The Second Circuit has stated that it does not accept the argument that "where an alien has an administratively [final] removal order but is pursuing habeas review, his detention is pursuant to INA § 236(c)." Wang v. Ashcroft, 320 F.3d 130, 147 (2d Cir. 2003). Thus, though Petitioner's removal has again been stayed, he remains ...


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