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Garcia v. Heron

October 1, 2009


The opinion of the court was delivered by: Michael A. Telesca United States District Judge



Petitioner Carlos Garcia ("Garcia" or "Petitioner") has filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking release from continued detention in the custody of the Department of Homeland Security ("DHS") pending an order of removal. For the reasons that follow, Garcia's petition is denied.


Petitioner, a native and citizen of the Dominican Republic entered the United States as a lawful permanent resident in 1984. See Respondent's Exhibits ("Ex.") at 108. (Dkt. #6). Petitioner's first conviction occurred in 1997, when he was eighteen years old, for Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02). As a result, removal proceedings were initiated by the former Immigration and Naturalization Service ("INS"), which charged Garcia as a removable alien for conviction of a firearms offense.*fn1 Ex. 131; See Immigration and Nationality Act ("INA") § 237(a)(2)(C).*fn2 His removal proceedings in 1998 resulted in a grant of cancellation of removal. Ex. 133; See INA § 240A (providing for cancellation of removal for certain permanent residents who have not been convicted of an aggravated felony). Garcia had four more criminal convictions between 2001 and 2002, which again triggered removal proceedings in immigration court. Ex. 35. Petitioner was encountered by DHS at Willard Drug Treatment Campus, where he was serving a sentence for a conviction for Criminal Possession of a Controlled Substance in the Fifth Degree.*fn3 A Notice to Appear dated March 31, 2003 charged Garcia with being subject to removal as an aggravated felon and a controlled substance violator. Ex. 107-109; See INA § § 237(a)(2)(A)(iii); 237(a)(2)(B)(i).

On September 16, 2003, while his removal proceedings were pending, Garcia filed a Form N-600 (Application for Certificate of Citizenship). Ex. 83, 92, 102. Petitioner was subsequently ordered removed in absentia by an immigration judge in Buffalo, New York pending the adjudication of his N-600 Application. Ex. 105-106. On September 14, 2004, Garcia was returned to DHS custody. He then sought a bond redetermination, which was denied due to his status as an aggravated felon. Ex. 118-119. His N-600 Application and subsequent appeal were also denied.*fn4 Ex. 120-122, 125. On October 19, 2004, the immigration judge denied petitioner's motion to reopen his removal proceedings, and on October 21, 2004, DHS sent a presentation packet to the Consulate General of the Dominican Republic to request a travel document for petitioner's removal. Ex. 15, 128.

Garcia then filed a petition for writ of habeas corpus and a motion for a stay of removal in this Court. See Garcia v. Department of Homeland Security, No. 04-CV-949(MAT), Docket No. 1 (W.D.N.Y. Filed on 11/29/2004). Petitioner's motion for a stay of removal was granted, thereby preventing DHS from executing the immigration court's order of removal. See id., Docket No. 3. DHS then cancelled arrangements for Garcia's removal, which had been scheduled for December 8, 2004. In January of 2005, Garcia's custody had been reviewed and DHS determined that his custody would be continued. Ex. 93-94. While in DHS custody, petitioner filed a second N-600 Application, which was again denied. Ex. 77-82.

On January 3, 2006, and January 3, 2007, petitioner was notified that his detention would continue. Ex. 46-47, 60-62. Following another review in January, 2008, Garcia was conditionally released from administrative custody subject to an Order of Supervision and was required to wear a Global Positioning System ("GPS") device. Ex. 26-30, 31-32. In April of 2008, however, petitioner removed the GPS and absconded from the supervised release program. He was then arrested on June 16, 2008, by DHS Fugitive Operations and was returned to the Buffalo Federal Detention Facility in Batavia, New York, where he is currently detained. Ex. 12, 24-25. Petitioner has requested habeas relief on the basis that his custody is unlawful. Petition ("Pet.") ¶ 31-38 (Dkt. #1).


I. Law Governing Custody Pending Removal from the United States

Matters pertaining to the detention of aliens implicate two separate provisions of the Immigration and Nationality Act. INA §§ 236 and 241, as codified at 8 U.S.C. § 1226 and 1231 are both relevant to the instant petition, and are discussed below.

A. INA § 236: Custody Pending Removal Proceedings

INA § 236 authorizes the arrest and detention of an alien for whom a warrant has been issued pending a decision on whether the alien is to be removed from the United States. An alien has no right to be released during removal proceedings, though the statute provides the Attorney General with discretion to release non-criminal aliens on bond. See INA § 236(a); Matter of D--J--, 23 I&N Dec. 572, 575-576 (A.G. 2003). Section 236(c) specifically instructs the Attorney General to take certain criminal ...

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