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Naitram Persaud v. Eric H. Holder

November 3, 2011

NAITRAM PERSAUD, PETITIONER,
v.
ERIC H. HOLDER, ATTORNEY GENERAL OF THE UNITED STATES; MICHAEL PHILIPS, FIELD OFFICE DIRECTOR FOR DETENTION AND REMOVAL, BUFFALO FIELD OFFICE, BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY; AND MARTIN HERON, FACILITY DIRECTOR, BUFFALO FEDERAL DETENTION FACILITY, RESPONDENTS.



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

DECISION AND ORDER

I. Introduction

Pro se petitioner Naitram Persaud ("Persaud" or "Petitioner") is an alien under a final order of removal. He seeks release from continued detention in the custody of the Department of Homeland Security, Immigration and Customs Enforcement (collectively hereinafter, "DHS") by means of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.

II. Factual Background and Procedural History

Persaud, a native and citizen of Guyana, entered the United States at Buffalo, New York, on December 8, 1992. He was classified as a B-2 nonimmigrant visitor who had falsely misrepresented himself in order to gain entry into the United States.

On March 3, 1995, Persaud was placed in immigration removal proceedings and charged with being removable from the United States as an alien who is present in the United States and who sought to procure or who has procured a visa, other documentation, or entry into the United States, or other benefit under the Immigration and Nationality Act ("INA"), by fraud or by willfully misrepresenting a material fact. See INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i),

On April 7, 1995, an immigration judge ("IJ") issued an order finding Persaud inadmissible to the United States because he had fraudulently procured entry to this country. The IJ offered him the option to voluntarily depart the United States, directing that the order deportation become effective if Persaud failed to depart on his own volition.

The Board of Immigration Appeals ("BIA") dismissed Persaud's appeal of the IJ's order and required Persaud to depart from the United States on or before April 29, 1996. Persaud failed to comply with this directive, and he also failed to surrender for deportation after being ordered to do so in January 2008.

When Persaud was arrested by the DHS New York Fugitive Operations Team in Central Islip, New York, pursuant to a warrant of removal on December 17, 2009, he had been a fugitive for more than thirteen years. e was placed in DHS custody and is currently being held at the Federal Detention Facility in Batavia, New York.

On February 3, 2010, the Embassy of Guyana ("the Embassy") issued a travel document for Persaud at DHS's request, and DHS made travel arrangements for Persaud's deportation. Also on February 3, 2010, Persaud filed a motion to have the BIA reopen his immigration removal proceedings and requested a stay of removal.

After the BIA denied Persaud's request for stay of removal on March 11, 2010, Persaud filed a petition for review accompanied by a motion for stay of removal in the United States Court of Appeals for the Second Circuit. See Persaud v. United States Att'y Gen'l, 2d Cir. Docket No. 10-888-ag. Persaud's filing of the petition for review and motion for stay of removal triggered the "forbearance policy", on an agreement between DHS and the Second Circuit that DHS will not effectuate removal of an alien while he or she has a petition for review pending before the Second Circuit. Because of the informal stay-of-removal, DHS cancelled Persaud's travel plans.

In accordance with immigration regulations, DHS reviewed Persaud's custody status in March 2010, and on March 23, Persaud was notified of DHS's decision to continue his detention because he is a likely flight risk.

On May 11, 2010, the Second Circuit dismissed Persaud's petition for review. On May 20, 2010, after the BIA denied his motion to reopen, Persaud filed another petition for review with a request for stay of removal in the Second Circuit. See Persaud v. Holder, 2d Cir. Docket No. 10-1963-ag. Persaud's filing of this petition for review again caused the forbearance policy to go into effect. On September 24, 2010, the Second Circuit Court granted Persaud's motion for a stay of removal, and a formal judicial stay of removal was entered.

On or about September 7, 2010, Persaud instituted this habeas proceeding. Persaud's second petition for review was dismissed by the Second Circuit on September 30, 2011, and the stay was vacated. Accordingly, there presently are ...


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