The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Carlos Garcia ("Garcia or "petitioner"), proceeding pro se, commenced this action seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. Petitioner challenges a final order of removal based on a claim that he obtained derivative citizenship through the naturalization of his father, and accordingly seeks (1) release on bond and (2) change of custody. The Court notes that petitioner's claim for citizenship is properly raised in a petition for habeas corpus, "which is not converted to a petition for review even after the passage of the REAL ID Act." Lewis v. McElroy, 2008 WL 4420681 at **2 (2d Cir. 2008) (citing Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)); see also 8 U.S.C. § 1252(e)(2)(A).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner is a native of the Dominican Republic who entered the United States in 1984 as a Lawful Permanent Resident. He was first encountered by the former Immigration and Naturalization Service ("INS") at Riker's Island on December 9, 1997, where he was serving a sentence for a conviction in New York County Supreme Court for Criminal Possession of a Weapon in the Third Degree.*fn1 As a result, he was charged as removable from the United States on a Notice to Appear dated January 27, 1998, as having been convicted of a firearm offense pursuant to Immigration and Nationality Act ("INA") § 237(a)(2)(C). See Notice at Respondent's (Resp't) Ex. B (Dkt. #21). Garcia entered INS custody in 1998 at the Varick Street Detention Center, and was later transferred to the Oakdale Detention Center in Oakdale, Louisiana. On July 21, 1998, an immigration judge granted petitioner's application for cancellation of removal at Oakdale, Louisiana, and petitioner was subsequently released from INS custody. See Order dated 7/21/1998 at Resp't Ex.
Between 2001 and 2002, Garcia was convicted of multiple drug and weapons-related offenses and was again subject to removal from the United States pursuant to INA § § 237(a)(2)(A)(iii) (aggravated felony statute) and 237(a)(2)(B)(i) (controlled substance violator) according to a Notice to Appear dated March 31, 2003.*fn2 Notice dated 3/31/2003 at Ex. B. On September 16, 2003, pending removal proceedings, Garcia filed Form N-600 (Application for Certificate of Citizenship). Upon being interviewed regarding his N-600 Application, Immigration and Customs Enforcement ("ICE") released petitioner from custody on October 6, 2003, in light of the possibility that he may have derived citizenship through his father's naturalization in 1996 when petitioner was seventeen years old.
Subsequent to his release, a document was received by an attorney with the U.S. Department of Homeland Security ("DHS") which indicated that the divorce decree relating to Garcia's parents specified that Garcia's mother, who did not naturalize prior to Garcia's eighteenth birthday, was granted custody of Garcia in the divorce decree. See Decl. of Denise Hochul at Ex. E. Thereafter, complete copies of the divorce decree were obtained. The decree did not award guardianship or custody to Garcia's father, nor did it impose any legal obligations on Garcia's father. Garcia was removed in absentia to the Dominican Republic on November 14, 2003. Order dated 11/14/2003 at Ex. B.
On September 14, 2004, petitioner was returned to ICE custody at Batavia, NY. Meanwhile, petitioner's N-600 Application was denied by U.S. Citizenship and Immigration Services ("CIS"). CIS determined that Garcia did not qualify for derivative citizenship because the divorce decree between his parents granted legal custody of Garcia to his mother, and only his father was naturalized before Garcia's eighteenth birthday. CIS Decision dated 9/29/04 at Ex. B. Garcia appealed his denial to the CIS Administrative Appeals Office ("AAO"). On appeal, petitioner claimed that his parents had a mutual understanding after their divorce that his father would have custody of petitioner. In the absence of an amended divorce decree, Garcia's appeal was denied on the basis that he had failed to establish that he was in the legal custody of his father at the time of his father's naturalization. AAO Decision dated 4/26/05 at Ex. B. In November of 2004, an immigration judge issued a Bond Memorandum in which he held that Garcia was ineligible for bond due to his criminal convictions which categorized him as an aggravated felon. Bond Mem. at Ex. B.
Garcia then filed the instant petition for a writ of habeas corpus and motion for stay of removal with this Court. (Dkt. #1). This Court granted petitioner's motion for a stay on December 4, 2004, four days before Garcia was scheduled for removal to the Dominical Republic. (Dkt. #3). Pursuant to the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005), the petition was then transferred to the Second Circuit Court of Appeals. (Dkt. #11). On September 28, 2006, the Second Circuit issued an order which noted that Garcia had moved for a stay of removal, appointment of counsel, extension of time, default judgment, change of venue/transfer of custody, and release on bond. The Second Circuit granted the motion for stay of removal, and transferred the motions for release on bond, transfer, and change of venue back to this Court, and denied petitioner's remaining motions. The Second Circuit directed that further proceedings be held in this Court regarding petitioner's claim that he is a national of the Untied States. (Dkt. #12). See 8 U.S.C. 1252(b)(5)(B). This Court subsequently denied petitioner's motions for discovery and for appointment of counsel. (Dkt. ##34, 36).
While his habeas petition was pending, petitioner filed a second N-600 Application, containing sworn statements from Garcia's father and mother relating to their custody agreement. CIS obtained additional information, including a 1988 tax return from Garcia's father, which indicated that Garcia did not live with his father at the time. Ex. M. A 1992 tax return from Garcia's father stated that his father was single with no dependents. Finally, Garcia's father's naturalization application dated February 27, 1996, indicated that he had eight children, but Garcia was not among the names listed as having resided with their father. Ex. N. Consequently, petitioner's second N-600 was denied. CIS Decision dated 5/16/05 at Ex. B. Again Garcia appealed to the Administrative Appeals Office, which affirmed previous denials issued by CIS. AAO Decision dated 9/19/05 at Ex. B.
On December 28, 2005 and December 28, 2006, decisions to continue detention pending removal following file review were issued by ICE based on petitioner's recidivist pattern of behavior and his inability to establish residence or employment if released. See ICE Decisions to Continue Detention at Ex. B.
Based on the following reasons, the petition ...