The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge
Petitioner filed a petition under 28 U.S.C. §2241 et. seq., seeking, inter alia, a writ of habeas corpus ordering his release from the custody of the Department of Homeland Security, United States Immigration and Customs Enforcement ("DHS") on June 17, 2010 .*fn1
On September 16, 2010, Hon. Richard J. Arcara referred this case to me pursuant to 28 U.S.C. §636(b) for all proceedings necessary to determine the factual and legal issues presented, and for preparation of a Report and Recommendation .
Petitioner is a native and citizen of Jamaica. Petition , ¶9. He entered the United States on or about December 22, 1994, as a lawful permanent resident. Vaccaro Declaration [7-2], ¶5. On or about September 15, 1998, petitioner was convicted in New York State Supreme Court of criminal possession of stolen property in the 3rd degree, and was sentenced to 5 years probation. Id., ¶6. He was subsequently convicted in New York State Supreme Court of resisting arrest on or about March 19, 2003, and was sentenced to a term of incarceration of 6 months. Id., ¶7.
Petitioner was placed in removal proceedings on July 14, 2003, and he was taken into the custody of the United States Department of Homeland Security, Immigration and Customs Enforcement ("DHS") shortly thereafter. Id., ¶¶9-10. Approximately one month later, he was released on bond. Id., ¶12. On March 28, 2006 and September 14, 2006, petitioner was convicted in New York Supreme Court of aggravated unlicensed operation of a motor vehicle and of criminal possession of stolen property in the 5th degree and was sentenced to 30 days and time served. Id., ¶14.
On July 23, 2007, petitioner was ordered removed to Jamaica in absentia by Immigration Judge Barbara Nelson. Id., ¶17; Ex. A, p. 15. On November 11, 2008, he was convicted in New York Supreme Court of bail jumping in the 3rd degree, and was sentenced to 60 days incarceration. Id., ¶18. He was then taken into DHS custody on November 25, 2009 and has been held since that time, pending his removal from the United States. Id., ¶19. DHS has reviewed petitioner's detention status on February 16 and June 30, 2010. Vaccaro Declaration [7-2], ¶24, Ex. A, pp. 2-7
To effectuate his removal, on December 3, 2009 DHS sent a presentation packet to the Consulate General of Jamaica to request a travel document for petitioner's removal. Id., ¶20. On December 21, 2009, petitioner filed a motion to reopen his removal proceedings with Judge Nelson, which was denied on January 4, 2010. Id., ¶¶21 and 22; Ex. A, pp. 12-13. However, he successfully moved to stay his removal during this period. Id., ¶21.*fn2
On January 25, 2010, petitioner appealed Judge Nelson's decision to the Board of Immigration Appeals ("BIA"); that appeal was dismissed on March 5, 2010. Id., ¶¶23 and 25. On April 1, 2010, he filed a petition for review of the BIA's order with the Second Circuit Court of Appeals, which was accompanied by a request for stay of removal. Id., ¶26. The Second Circuit's docket reflects that, to date, no determination has been made on petitioner's request for a stay. According to respondents, petitioner's removal has been effectively stayed pursuant to a standing agreement ("forbearance policy") between the United States Attorney General and the Second Circuit. See Vaccaro Declaration [7-2], ¶26.
Petitioner filed this petition on June 17, 2010 seeking an order granting a writ of habeas corpus for his immediate release from custody, or in the alternative, a "hearing where Respondents must demonstrate that Petitioner's continued detention is justified". Petition , Prayer for Relief.*fn3 He alleges that he has been detained longer than reasonably necessary to effectuate his removal, and that he has been deprived of a constitutionally adequate hearing and other procedural protections. Id., ¶¶36-50.
A. Is Petitioner's Detention Governed by to 8 U.S.C. §1226 or §1231?
At the outset, I must determine whether petitioner's detention is pursuant to 8 U.S.C. §1226 or §1231. The petition treats his detention as being under §1226, whereas respondents consider his detention under §1231(a). Respondents' Memorandum of Law , p. 4. Petitioner became the subject of a final order of removal on July 23, 2007, when he was ordered removed to Jamaica in absentia by Immigration Judge Barbara Nelson. Vacarro Declaration [7-2], ¶17, Ex. A, p. 15. See Farez-Espinoza v. Chertoff, 600 F.Supp.2d 488, 499 (S.D.N.Y. 2009)("A removal order entered in the absence of the alien to whom it refers, such as the removal order at issue in this case, becomes administratively final immediately upon its issuance" citing 8 C.F.R. §1241.1(e)).
Because petitioner was the subject of an administrative final removal order at the time he was detained, his detention has been pursuant to 8 U.S.C. §1231, which governs detention of aliens whose removal from the United States has been administratively ordered, rather than pursuant to 8 U.S.C. §1226, which governs detention "pending a decision on whether the alien is to be removed from the United States". 8 ...