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Yvon Lucien v. Todd L. Tryon

October 30, 2012

YVON LUCIEN,
PETITIONER,
v.
TODD L. TRYON, AND DEPARTMENT OF HOMELAND SECURITY RESPONDENTS.



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

I. Introduction

DECISION AND ORDER

Pro se Petitioner Yvon Lucien("Lucien" or "Petitioner"), an alien subject to ongoing removal proceedings, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his continued detention in the custody of Respondents ("Respondents" or "the Government"), and seeks an order releasing him from mandatory detention, or, in the alternative, granting Petitioner an individualized bond determination hearing.

II. Facts & Procedural History

Petitioner, a native of the Democratic Republic of the Congo and a citizen of both Haiti and the Democratic Republic of the Congo, was admitted to the United States on or about November 1, 1968, as a lawful permanent resident. See Declaration of Donald J. Vaccaro, Jr. ("Vaccaro Declaration"), dated 12/16/2011, at ¶ 5 (Exhibit 1 of Resp't Answer and Return).

On or about April 16 and May 22, 1996, respectively, Petitioner was convicted in Kings County of Attempted Sale of a Controlled Substance in the Third Degree, in violation of N.Y. Penal Law ("Penal Law") §§ 110.00, 220.39[1], and was sentenced to 60 days imprisonment and five years probation for the former offense, and 90 days imprisonment and five years probation for the latter offense. On or about January 16, 2001, April 18, 2003, and January 17, 2006, respectively, Petitioner was convicted in Kings County of Criminal Possession of a Controlled Substance in the Seventh Degree, in violation of Penal Law § 220.03. He was sentenced to five days imprisonment for the first offense, to thirty days imprisonment for the second offense, and to time served for the third offense. On or about March 1, 2005, Petitioner was convicted in Kings County of Assault in the Third Degree, in violation of Penal Law § 120.00[1], and sentenced to 30 days imprisonment. On or about November 21, 2006, Petitioner was convicted in Kings County of Assault in the Second Degree, in violation of Penal Law § 120.05[2], and was sentenced to a three year term of imprisonment and three years post release supervision. Id. at ¶ 6.

On April 4, 2011, Lucien was encountered by officers assigned to the Department of Homeland Security ("DHS") Batavia Criminal Alien Program at the Willard Drug Treatment Campus in Willard, New York. Lucien was sent to Willard Drug Treatment Campus in January 2011 because he violated a condition of his parole related to his November 21, 2006 conviction for Assault in the Second Degree. Id. at ¶ 7.

After the DHS officers verified Lucien's immigration status, he was placed in immigration removal proceedings by a Notice to Appear, dated June 28, 2011, which charged him, pursuant to Immigration and Nationality Act ("INA") § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), with being subject to removal from the United States as an alien who has been convicted of an aggravated felony crime as defined in INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), a crime of violence; pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), with being subject to removal from the United States as an alien who has been convicted of a controlled substance offense; pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who has been convicted of an aggravated felony as defined in INA § 101 (a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), a law relating to the illicit trafficking in a controlled substance; and pursuant to INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien who has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal conduct. Id. at ¶ 8.

Upon his release from the Willard Drug Treatment Campus, Petitioner was received into DHS custody on July 5, 2011. Id. at ¶ 9. On October 5, 2011, an Immigration Judge ("IJ"), after conducting a hearing at Petitioner's request, denied Lucien's request for change in custody status and determined that Lucien was subject to mandatory detention pursuant to the provisions of INA § 236(c). Id. at ¶ 8. Lucien appealed the IJ's denial of bond, which was denied by the Board of Immigration Appeals ("BIA") on December 27, 2011. See Resp't Supplemental Affidavit (Dkt. No. 12) at Ex. A, p 1-4.

On April 30, 2012, at the conclusion of immigration proceedings in the Immigration Court, the IJ found Petitioner removable from the United States and ordered him removed to Haiti. Id. at ¶ 11. On June 6, 2012, Petitioner appealed the IJ's decision of April 30, 2012 to the BIA, which remains pending. Id. at ¶ 12.

In the instant habeas corpus petition, Petitioner seeks relief on the basis that "Respondents hold him in mandatory detention, unlawfully, without the opportunity for bail or bond assessment, pursuant to an erroneous interpretation of Section 236(c) . . . ." Pet. at 1. For the reasons that follow, habeas relief is denied, Petitioner's request for a bond hearing is denied, and the petition is dismissed.

III. DISCUSSION

A. Jurisdiction and Exhaustion

As an initial matter, this Court has jurisdiction to review the petition. It is well-established that district courts retain jurisdiction to consider an alien's habeas challenge to the statutory framework mandating his detention during removal proceedings. See 28 U.S.C. ยง 2241(c)(3) (noting that the writ of habeas corpus may extend to those held in custody in violation of the constitution "or laws or treaties of the United States"); Demore v. Kim, 538 U.S. ...


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