The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
Petitioner Maria Augusta Farez-Espinoza ("Farez-Espinoza") filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2241 on December 1, 2008 against Secretary of the Department of Homeland Security ("DHS") Michael Chertoff and the United States Attorney General Michael Mukasey (collectively, "Respondents" or "Government")*fn1 challenging her detention by DHS on both statutory and constitutional grounds. In an Opinion and Order dated January 28, 2009, this Court found that DHS lacked statutory authority to detain Petitioner and granted the petition, ordering that Petitioner be given supervised release in accordance with the Department's usual practice (the "January 28 Order"). See Farez-Espinoza v. Chertoff, 08 Civ. 11060 (HB), 2009 WL 195937 (S.D.N.Y. Jan. 28, 2009). The January 28 Order also resolved various procedural issues disputed by the Government -- to wit, it held that (1) this Court had jurisdiction over the petition; (2) Respondents were properly named in the petition; and (3) venue was proper in this District. On February 12, 2009, the Government filed the instant Motion for Reconsideration pursuant to Rules 59 and 60 of the Federal Rules of Civil Procedure and Rule 6.3 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Local Rule 6.3") seeking vacatur of the January 28 Order and dismissal of the petition as moot. For the reasons that follow, the Government's motion is denied.
The facts underlying the habeas petition were discussed at length in the January 28 Order, and familiarity therewith is presumed. See Farez-Espinoza v. Chertoff, No. 08 Civ. 11060 (HB), 2009 WL 195937, at *1-2 (S.D.N.Y. Jan. 28, 2009) ("Farez-Espinoza I"). The facts are repeated here only to the extent they are relevant to the Government's instant motion for reconsideration.
Farez-Espinoza is a citizen of Ecuador and entered the United States on July 27, 2006, on which date she was served with a Notice to Appear alleging that she was removable as an alien present without admission or parole pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Farez-Espinoza appeared before the United States Immigration Court in this district on November 30, 2006 and was scheduled for a removal hearing to take place on July 17, 2007. Farez-Espinoza never received notice of the removal hearing. The Immigration Court entered an Order of Removal on July 19, 2007, a copy of which Farez-Espinoza alleges she never received.
Farez-Espinoza was detained on October 27, 2008 fornonpayment of a$2.00 New York City subway fare and was taken into custody by the New York City Police Department. She was subsequently transferred to the custody of the Bureau of Immigration and Customs Enforcement ("ICE"), whereupon she was transferred several times until she arrived at a detention facility in Bloomsburg, Pennsylvania on December 23, 2008, where she remained until January 27, 2009. In this interim, Farez-Espinoza filed her habeas petition seeking "permission to be fingerprinted," to be "entitled to the equal protection of the Constitution and for guidance in accordance with the rules and regulations of the federal court as well as the immigration statutes," and for supervised release.
On January 20, 2009, as directed by the Board of Immigration Appeals, Farez-Espinoza filed a motion to reopen her case before the Immigration Court and a stay of the removal order was issued. The Government opposed the motion to reopen on January 26, 2009. On that same day, Farez-Espinoza's counsel was advised by an ICE representative that bail had been set for Farez-Espinoza's release in the amount of $5,000, and that her custody review had been postponed. The ICE representative also informed counsel for Farez-Espinoza that if ICE detained Farez-Espinoza again in the future, its position was that she would remain within the initial presumptively reasonable six-month period of detention under 8 U.S.C. § 1231.
On January 27, 2009, Farez-Espinoza's family posted bond and she was released from ICE custody. After a conversation with counsel for the Government, counsel for Farez-Espinoza sent a letter via fax to this Court, requesting the Court to keep the case open, and noting that ICE claimed to retain the authority to detain Farez-Espinoza at its discretion, and that if it did so, its position was that it remained within the initial presumptively reasonable six-month detention period allowed under the U.S. Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678 (2001). On January 28, 2009, this Court issued its Opinion and Order granting Farez-Espinoza's petition. On January 29, 2009, the Immigration Court granted Farez-Espinoza's motion to reopen her immigration case and rescinded the removal order against her.
A. Timeliness of the Government's Motion
Although not raised by Petitioner in opposition to the Government's motion, the Court notes that, insofar as the motion is predicated on Local Rule 6.3 and Federal Rule 59, it is untimely. Motions for reconsideration "shall be served within ten (10) days after the docketing of the court's determination of the original motion." Local Rule 6.3. There is authority among the district courts in this Circuit that the timely filing of a motion pursuant to Local Rule 6.3 is a sufficient basis for denial of the motion. See, e.g., Fears v. Wilhelmina Model Agency, Inc., 02 Civ. 4911 (HB), 2005 U.S. Dist. LEXIS 10764, at *8 (S.D.N.Y. June 6, 2005) ("If a motion for reconsideration is filed 'after the ten day window permitted under Local Rule 6.3 . . . Plaintiffs' motion could be denied on this basis alone.'") (quoting American Hotel Int'l Group Inc. v. OneBeacon Ins. Co., 01 Civ. 654, 2005 U.S. Dist. LEXIS 9420 (S.D.N.Y. May 18, 2005)); see also Gibson v. Wise, 331 F. Supp. 2d 168, 169 (E.D.N.Y. 2004) (denying motion for consideration as untimely); Siemens Westinghouse Power Corp. v. Dick Corp., 219 F.R.D. 552, 554 (S.D.N.Y. 2004) (same). The same filing deadline applies to motions for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure. See, e.g., Lichtenberg v. Besicorp Group Inc., 204 F.3d 397, 401 (2d Cir. 2000). The ten-day period is calculated pursuant to Rule 6(a) of the Federal Rules of Civil Procedure by counting business days, excluding weekends and holidays. See Licthenberg, 204 F.3d at 401; Henderson v. Metropolitan Bank & Trust Co., 502 F. Supp. 2d 372, 374 n.3 (S.D.N.Y. 2007); Fears, 2005 U.S. Dist. LEXIST 10764 at *8. Here, the Court's opinion that is the subject of the Government's motion was issued and docketed on January 28, 2009; ten business days from that date would have been February 11, 2009. The Government filed the instant motion on February 12, 2009, one day after the deadline.*fn2 Therefore, the motion is technically untimely under Rule 59 and Local Rule 6.3.
Motions for reconsideration that are filed outside the ten-day period under Rule 59 and Local Rule 6.3 are treated as motions made pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Miller v. Norton, 04-CV-3223(CBA), 2008 U.S. Dist. LEXIS 34688, at *3 (E.D.N.Y. Apr. 28, 2008); Cioce v. County of Westchester, 03 Cv. 6794 (CLB), 2006 U.S. Dist. LEXIS 24768, at *3 (S.D.N.Y. Mar. 14, 2006), aff'd, 211 Fed. Appx. 18 (2d Cir. 2006) ("A motion to reconsider is to be treated as a Rule 59(e) motion if filed within 10 days of entry of the challenged order and as a Rule 60(b) motion if filed thereafter.") (quoting United States v. Clark, 984 F.2d 31, 32 (2d Cir. 1993)). Motions made pursuant to Rule 60(b) must be made either within one year or a "reasonable time," depending on the subsection of the Rule under which the motion is made. See "R" Best Produce, Inc. v. DiSapio, 540 F.3d 115, 123-24 & n.6 (2d Cir. 2008). Although the Government does not specify which subsection of Rule 60 governs its motion, it is clear that the motion is timely under either approach.
Overlooking the procedural deficiency of the Government's motion under Federal Rule 59 and Local Rule 6.3, and in light of its timeliness under Federal Rule 60 and in the interest of deciding matters on their merits as directed by the Federal Rules, ...