The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Jihad Achouatte ("Achouatte" or "Petitioner") is an alien under a final immigration order of removal. He has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking release from continued detention in the custody of Respondents ("the Government" or "DHS/ICE") pending the execution of the final order of removal.
II. Factual Background and Procedural History
Petitioner, a native and citizen of Morocco, was admitted to the United States on or about October 4, 2003 as a nonimmigrant visitor with authorization to remain until April 1, 2004. On December 29, 2004 his status was adjusted to that of a conditional resident. On June 8, 2007, the conditional provision of his status was lifted.
Petitioner was placed in removal proceedings on June 20, 2008, on the basis that he was convicted on January 16, 2008, of possession of a controlled substance (cocaine) in Warren County, New York. Petitioner was charged with being subject to removal pursuant to Immigration and Nationality Act ("INA") section 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) ("Any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.").
At a videoconferenced hearing on January 23, 2009, Petitioner, through counsel, admitted to all but the final allegation that he had been convicted of cocaine possession. He denied the charge that he was removable.
On March 23, 2009, after examining the controlled substance report and the transcript of Petitioner's guilty plea, the Immigration Judge ("IJ") found by clear and convincing evidence that Petitioner had been convicted of fourth degree possession of a controlled substance; specifically, cocaine. Petitioner had no viable claims for exemption and the IJ accordingly ordered that Petitioner be removed to Morocco.
On July 8, 2009, the Board of Immigration Appeals ("BIA") summarily affirmed the IJ's decision, and this became the final agency determination in Petitioner's case.
Achouatte was received into DHS/ICE custody on September 28, 2009, upon his release from the custody of the New York State Department of Correctional Services. Achouatte was subject to mandatory detention for the ninety-day removal period pursuant to INA § 241(a), 8 U.S.C. § 1231(a), as an alien subject to a final order of removal. DHS/ICE commenced efforts to secure a travel document for Achouatte's removal to Morocco.
On December 21, 20019, Petitioner filed a petition for review, along with a motion for a stay of removal, in the United States Court of Appeals for the Second Circuit. Both applications remain pending.
On December 22, 2009, DHS/ICE was notified by a representative of the Consulate General of Morocco a travel document would be issued for Achouatte. Thus, within the ninety-day removal period, DHS/ICE received confirmation that a travel document would be available for Achouatte's repatriation to Morocco. However, Achouatte's filing of the petition for review along with a motion for stay in the Second Circuit interrupted the removal process. Due to a forbearance policy that is based on an agreement between DHS/ICE and the Second Circuit, DHS/ICE is prevented from executing Achouatte's removal order.*fn1
The Second Circuit determined that the case should be held in suspense pending that court's resolution of two appeals (Luna v.Holder,07-3796-ag; and Thompson v. Holder, 08-4840-ag). See Docket Entry dated 3/14/2011 in Achouatte v. Holder, 09-5234-ag (2d Cir.).
On April 6, 2010, Petitioner filed the instant petition for a writ of habeas corpus, alleging that his continued detention was violative of due process and seeking release from ...