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Bazoumana Fofana v. Eric Holder

May 1, 2013

BAZOUMANA FOFANA, PETITIONER,
v.
ERIC HOLDER, ATTORNEY GENERAL, JANET NAPOLITANO, SECRETARY OF DHS, MICHAEL PHILIPS, DISTRICT DIRECTOR, TODD TRYON, ASST. FIELD OFFICE DIRECTOR, AND IMMIGRATION AND CUSTOMS ENFORCEMENT, RESPONDENTS.



The opinion of the court was delivered by: John T. Curtin United States District Judge

INTRODUCTION

Petitioner Bazoumana Fofana, an alien under a final order of removal from the United States, has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking release from detention in the custody of the United States Department of Homeland Security, Immigration and Customs Enforcement (collectively, "DHS"), pending the execution of a final immigration order of removal issued against him. Item 1. As directed by this court's order entered December 12, 2012 (Item 2), respondent*fn1 has submitted an answer and return (Item 4), along with an accompanying memorandum of law (Item 5), and petitioner has submitted a response in reply (Item 7).

For the reasons that follow, the petition is denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petitioner, a native and citizen of the Republic of Cote d'Ivoire ("Ivory Coast'), entered the United States at New York, New York, on or about June 20, 1996 as a non-immigrant visitor with authorization to remain in the United States for a temporary period not to exceed one year. See Item 4-1 (Payan Decl., Exh. 1), ¶ 5; see also Item 1, ¶ 6. On April 19, 2011, petitioner was convicted of sex trafficking and was sentenced to a term of incarceration of one to three years. See Item 4-1, ¶ 6.

On May 9, 2011, while at the Ulster Correctional Facility in Napanoch, New York, petitioner was encountered by immigration officers and an immigration detainer was lodged against him upon verification of his immigration status. See Item 4-1, ¶ 7. Deportation proceedings were commenced by a Notice to Appear ("NTA") served on November 21, 2011, which charged petitioner with being subject to removal from the United States pursuant to § 237(a)(1)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(B), as an alien who has remained in the United States for a longer time than permitted. Id. at 8; Exh. A, pp. 13-14.

On March 30, 2012, upon his release from custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), petitioner was received into DHS custody. Item 4-1, ¶ 9. On May 9, 2012, petitioner was served with Additional Charges of Inadmissibility/Deportability including the factual allegation that petitioner had been convicted of the crime of sex trafficking. Id., ¶ 10; Exh. A, p. 12. On May 16, 2012, an immigration judge ("IJ") terminated removal proceedings against petitioner on the basis that petitioner was amendable to an Administrative Removal Order pursuant to INA § 238, 8 U.S.C. § 1228. Id., ¶ 11; Exh. A, pp. 9-10.

On May 17, 2012, petitioner was served with a Notice of Intent to Issue a Final Administrative Removal Order which charged him with being removable from the United States, 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. Item 4-1, ¶ 12; Exh. A, pp. 4, 7-8. On May 22, 2012, petitioner was served with a Final Administrative Removal Order. Id., ¶ 13; Exh. A, pp. 4, 6.

On August 7, 2012, DHS sent a presentation packet to the Embassy of the Republic of Ivory Coast (the "Embassy") in Washington, D.C., requesting that a travel document be issued for petitioner's removal. Item 4-1, ¶ 16; Exh. A, p. 17. DHS records indicate that DHS representatives have attempted to contact or have contacted the Embassy on more than ten occasions from August 2012 through January 2013. Id., ¶ 17. At the present time, the request for a travel document for petitioner remains pending with the Embassy. Id., ¶ 19. On August 21, 2012, petitioner was notified that, upon review of his custody status and based on the totality of information available, DHS had determined that he would be a threat to the community and a flight risk of flight, and detention would be continued pending removal. Item 4-1, ¶ 22; Exh. A, pp. 3-4.

On November 8, 2012, a panel was convened at the Buffalo Federal Detention Facility to conduct a further review of petitioner's custody status, including an in-person interview. Item 4-1, ¶ 23. Following completion of the file review and interview, petitioner was notified on November 27, 2012, that DHS had determined to continue his detention in DHS custody. Id., ¶ 24; Exh. A, p. 2.

Meanwhile, petitioner filed this action on November2 8, 2012, seeking habeas corpus relief pursuant to 28 U.S.C. § 2241 on the ground that his continued detention in post-removal-order custody is unlawful since it has exceeded the presumptively reasonable six-month period established under the due process standards set forth by the United States Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001). Upon full consideration of the matters set forth in the submissions on file, and for the reasons that follow, the petition is denied.

DISCUSSION

Petitioner challenges his continued detention by way of habeas corpus review under 28 U.S.C. § 2241, which "authorizes a district court to grant a writ of habeas corpus whenever a petitioner is 'in custody in violation of the Constitution or laws or treaties of the United States.' " Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C. § 2241(c)(3)); see also Zadvydas, 533 U.S. at 687 (petition under § 2241 is the basic method for statutory and constitutional challenges to detention following order of removal).

Matters pertaining to the detention of aliens pending the completion of immigration removal proceedings, and pending removal following the entry of a final order of removal, are governed by two separate provisions of the INA -- respectively, INA § 236, which authorizes the arrest and detention of an alien on warrant pending a decision on whether the alien is to be removed from the United States, and INA § 241, which authorizes detention of aliens after the issuance of a final removal order. In this case, petitioner's detention at the time he filed his habeas petition was pursuant to INA § 241(a), which requires the Attorney ...


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