The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of final judgment. Dkt. #8.
Plaintiff commenced this action pro se, pursuant to 28 U.S.C. § 2241, challenging his detention by the Department of Homeland Security, Bureau of Immigration and Custom Enforcement ("ICE"), since September 5, 2006. Dkt. #1.
Currently before the Court is petitioner's motion for summary judgment. Dkt. #9. For the following reasons, the motion for summary judgment is denied and the petition is denied.
On January 9, 1995, petitioner was convicted of illegal entry and harboring aliens in violation of 8 U.S.C. § 1324(a)(1)(D). Petitioner was also convicted of embezzlement of funds from a federally funded government agency, fraud and misuse of an alien registration card and illicit transportation of a minor with the intent to engage in sexual activity in violation of 8 U.S.C. §§ 666(a)(1)(A), 1546 & 2423. Dkt. #1.
The Immigration and Naturalization Service ("INS"), served petitioner with a Notice to Appear on March 26, 1999 and conducted a hearing on September 9, 1999 to consider petitioner's claim of United States citizenship. Dkt. #5, p.10. The Immigration Judge heard testimony from petitioner, a retired INS agent and a Deputy Inspector General for the New York City Department of Investigation. Dkt. #5, pp.11-14 & pp.47-48. In a detailed decision entered November 3, 1999, the Immigration Judge determined that petitioner was a Jamaican citizen who had entered the United States as a visitor pursuant to a Jamaican passport on multiple occasions in 1980 and 1981, subsequently assumed the identity of a United States citizen, Paul Milton Miles, who was the son of a client of petitioner's former employer, and used that identity to obtain a United States passport and then legally changed his name from Paul Milton Miles to Junior Mohammed Ricketts, enabling him to change the name on the United States passport to Junior Mohammed Ricketts. Dkt. #5, pp.10-24. Although the Court will not recount the evidence in great detail, suffice it to say that petitioner was found to be in possession of both a Jamaican and United States passport bearing petitioner's photograph; that Respondent presented a birth certificate for Junior Nathaniel Ricketts from Jamaica; and that the mother of Paul Milton Miles was unable to identify a photograph of petitioner. The Immigration Judge rejected petitioner's claim of United States citizenship and ordered his removal to Jamaica. Dkt. #5, pp.10-20 & 39. The Order or Removal became final following the decision of the Board of Immigration Appeals dated March 8, 2000. Dkt. #5, pp.25-28.
Petitioner filed a petition for judicial review of the decision and a request to stay removal in the United States Court of Appeals for the Third Circuit on March 21, 2000. Dkt. #1; see Dkt. #00-3270 at https://ecf.ca3.uscourts.gov/cmecf.
On April 3, 2000, petitioner was removed to Jamaica. Dkt. #5, p.40.
The Court of Appeals for the Third Circuit issued an Order directing petitioner to show cause why the request for stay should not be dismissed as moot because of his deportation and subsequently terminated the case for default. See Dkt. #00-3270 at https://ecf.ca3.uscourts.gov/cmecf.
Petitioner claims that he was detained in Jamaica until his return to the United States with the assistance of the United States Embassy and the Jamaican government on April 9, 2002. Dkt. ##1; 7, ¶ 6 & 10, ¶ 3. Respondent asserts that petitioner re-entered the United States at an unknown date and location. Dkt. #5, ¶ 6 & p.8, ¶ 7.
On April 22, 2005, while serving a sentence of imprisonment at the Hudson Correctional Facility following his conviction for forgery and grand larceny, petitioner claims that he was interviewed by an agent from the Department of Homeland Security and explained to the agent that he is a citizen of the United States. Dkt. #1; Dkt. #5, pp.8 & 33-38 &50. Respondent claims that petitioner was issued a Notice of Intent/Decision to Reinstate the prior order of removal on this date. Dkt. #5, ¶ 7. A Warrant of Removal/Deportation indicating Reinstatement of Prior Order is dated August 24, 2006. Dkt. #13-3, p.1.
Petitioner was paroled from the custody of the New York State Department of Corrections on September 5, 2006 and placed in the custody of ICE pursuant to the detainer and warrant of removal dated November 3, 1999. Dkt. #1.
Respondent sent a presentation packet to the Consulate General of Jamaica seeking a travel document to effectuate petitioner's removal on September 5, 2006. Dkt. #13-2, ¶ 11.
By letter dated September 13, 2006, petitioner asked the Consulate General of Jamaica not to issue travel documents to him because he was not a citizen of Jamaica. Dkt. #7, pp.34-35.
Petitioner filed a petition for review of the reinstated removal order and a claim of Unites States citizenship, along with a request for a stay of removal, before the United States Court of Appeals for the Third Circuit on October 30, 2006. Dkt. #1.
On November 6, 2006, the Jamaican Consulate advised that a travel document would not be issued for petitioner until the disposition of his petition in the Court of Appeals for the Third Circuit. Dkt. #13-2, ¶ 13.
The Court of Appeals dismissed the petition as untimely by Order dated April 16, 2007. Dkt. #5, ¶ 10 & p.51.
Thereafter, a representative from the Jamaican Consulate informed Respondent that a travel document would be issued for petitioner. Dkt. ##13-2, ¶ 15 & 13-3, p.42. Respondent scheduled ...