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Rashid Nasir Khan v. Martin D. Herron

October 14, 2011

RASHID NASIR KHAN, PETITIONER,
v.
MARTIN D. HERRON, DIRECTOR OF BUFFALO FEDERAL DETENTION FACILITY, MICHAEL T. PHILLIPS, ICE FIELD OFFICE DIRECTOR,
ERIC H. HOLDER, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENTS.



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

DECISION AND ORDER

I. Background

By means of a petition pursuant to 28 U.S.C. § 2241 (Docket No. 1), pro se petitioner Rashid Nasir Khan ("Khan" or "Petitioner"), an alien found removable under the Immigration and Nationality Act, seeks release from continued detention in Respondents' (collectively hereinafter "DHS") custody pending the execution of a final removal order. Khan was found deportable based upon his convictions on November 28, 2000, in New York State Supreme Court (Queens County) of Criminal Possession of a Controlled Substance (heroin) in the Second Degree in violation of New York State Penal Law ("P.L.") § 220.18(1) and Criminal Sale of a Controlled Substance (heroin) in the First Degree in violation of P.L. § 220.43(1). Khan was sentenced to a term of incarceration of 11 years.

Based upon these felony convictions, the Government instituted removal proceedings against Khan and ultimately secured an order directing his removal from the United States. Upon his release from state custody on August 3, 2009, Khan was transferred to the custody of DHS.

Respondents indicate that they promptly commenced efforts to secure a travel document for Khan's removal to Pakistan. As of May 6, 2010, the date of Respondents' answer to the petition, DHS had provided the Pakistan Consulate with Khan's expired passport and Khan had completed an application form for a new passport. See Declaration of Donald J. Vaccaro ("Vaccaro Decl."), ¶18 (Docket Nos. 6-1, 6-2).

When this matter was transferred to the undersigned on July 5, 2011. (Docket No. 9), the Court had not, since May 6, 2010, received any further information from Respondents regarding their progress in effectuating Khan's removal and repatriation to Pakistan. Khan had been in Respondents' custody almost two years by that point, and the presumptively reasonable six-month period of detention set forth in Zadvydas v. Davis, 533 U.S. 678 (2001), had long since passed. Because the Due Process concerns discussed in Zadvydas appeared to be implicated in Khan's case, the Court directed Respondents to provide a status update regarding their efforts to repatriate Khan to Pakistan or otherwise accomplish his removal from the United States.

On August 17, 2011, Respondents submitted their status update, noting that on May 25, 2010, Khan made a request for a stay of removal in a petition for review filed in the United States Court of Appeals for the Second Circuit, arguing that his crimes-of-conviction were not "aggravated felonies" and therefore did not render him "deportable." See Khan v. Holder, No. 10-2036-ag (2d Cir. 2010).*fn1 This petition was accompanied by a request for a stay of removal, which triggered the Second Circuit's "forbearance policy"*fn2 and thereby prevented DHS from completing arrangements for Khan's removal.

Although a travel document for Khan's removal from the United States was received by the Government from the Consulate on June 4, 2010, the Government was not able to act upon it due to the forbearance policy going into effect upon Khan's filing of the petition for review in Khan v. Holder, No. 10-2036-ag (2d Cir.).

On September 7, 2010, the Second Circuit entered an order dismissing Khan's petition for review, and that order was issued as a mandate on November 23, 2010. On November 23, 2010, DHS sent Khan's expired travel document to the Pakistan Consulate and requested that the document be re-issued and extended for three more months. On December 2, 2010, Khan was interviewed by a consular representative. Following the interview, DHS was notified that the travel document for Kahn would be re-issued and extended.

On December 9, 2010, before DHS could complete travel arrangements to have him deported, Khan filed another petition for review with a request for stay in the Second Circuit. See Khan v. Holder, No. 10-5011-ag (2d Cir.). The forbearance policy again went into effect upon Khan's filing of the third petition and request for a stay, precluding DHS from removing Khan from the United States. In this petition before the Second Circuit, Khan sought review of orders issued by the Bureau of Immigration Appeals ("BIA") dated January 24, 2007; August 8, 2007; and April 7, 2010.

On December 16, 2010, DHS received a re-issued travel document for Khan which was valid until March 12, 2011. However, due to the informal stay of removal arising from the Second Circuit's forbearance policy, DHS again was prevented from making travel arrangements for Khan.

On January 24, 2011, while the third petition was pending, Khan filed a fourth petition for review of a BIA order dated January 5, 2011, along with a stay request, in the Second Circuit. See Khan v. Holder, No. 11-0261-ag (2d Cir.).

By order dated June 6, 2011, the Second Circuit granted the Government's motion to dismiss Petitioner's third petition for review, denied as moot the motion for stay of removal; denied as moot the motion for assignment of pro bono counsel; and denied as moot the motion to proceed in forma pauperis. See Khan v. Holder, No. 10-5011-ag (2d Cir.). The fourth petition for review (Khan v. Holder, No. 11-0261-ag (2d Cir.)) remains pending. The informal stay of removal arising from the Second Circuit Court's forbearance policy continues to prevent DHS from effectuating Khan's removal.

In the interim, Khan's custody status has been reviewed by DHS officials in November 2009, February 2010, May 2010, and May 2011. Following each of the reviews, DHS declined to release Khan. In the May 2011 decision, DHS noted that Khan had provided "no proof of equities [sic] in the community, family ties in the United States, no evidence of employment prospects or ...


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