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Hakim Rahel, A45-546-257 v. Todd Tryon

May 1, 2013

HAKIM RAHEL, A45-546-257, PETITIONER,
v.
TODD TRYON, ASSISTANT FIELD OFFICE DIRECTOR, RESPONDENTS.



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

INTRODUCTION

Petitioner Hakim Rahel, 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 January 3, 2013 (Item 3), respondent has submitted an answer and return (Item 5), along with an accompanying memorandum of law (Item 6), in opposition to the petition. For the reasons that follow, the petition is denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petitioner, a native and citizen of Bangladesh, was admitted to the United States on or about October 12, 1996, as a lawful permanent resident. See Item 5-2 (Exh. A, attached to Declaration of DHS Deportation Officer Juanita Payan), pp. 3, 15.

According to DHS records, on February 11, 2010, petitioner was convicted in New York State Supreme Court, New York County, of Burglary in the 3rd Degree, in violation of N.Y. Penal Law § 40.20. He was sentenced to 30 days incarceration and 5 years probation. On December 7, 2010, petitioner was re-sentenced to a 1 year term of imprisonment for violating the terms of his probation. Id. at 7, 15. On or about November 16, 2010, petitioner was convicted in New York State Supreme Court, New York County, of Attempted Burglary in the 3rd Degree, in violation of N.Y. Penal Law §§ 110,140.20. He was sentenced to a term of imprisonment of 18 months to 3 years. Id.

On December 29, 2010, Petitioner was encountered by DHS Criminal Alien Program Officers at the Ulster Correctional Facility, maintained by the New York State Department of Correctional Services ("DOCS," reorganized in 2011 and renamed the Department of Corrections and Community Supervision ("DOCCS")). Id. at 16. Upon verification of his immigration status, petitioner was served a Notice to Appear, dated April 15, 2011, which charged him with being subject to removal from the United States for violations of the Immigration and Nationality Act ("INA")--specifically, sections 237(a)(2)(A)(ii) (8 U.S.C. § 1227(a)(2)(A)(ii)) (conviction of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct), and 237(a)(2)(A)(iii) (8 U.S.C. § 1227(a)(2)(A)(iii) (conviction of an aggravated felony, defined in the INA as a law relating to a theft offense or burglary offense for which the term of imprisonment at least 1 year was imposed). Id. at 13-15.

On September 26, 2011, upon his release from the custody of DOCCS, petitioner was received into DHS custody. Id. at 7. On January 13, 2012, Immigration Judge Steven J. Connelly ordered petitioner removed from the United States to Bangladesh. Id. at 12. The removal order became final on May 25, 2012, when the Board of Immigration Appeals ("BIA") dismissed petitioner's appeal from the Immigration Judge's decision. Id. at 8, 11.

On May 31, 2012, DHS sent a presentation packet to the Consulate General of Bangladesh (the "Consulate") in New York, New York, requesting that a travel document be issued for petitioner's removal, id. at 39, and on that same day served petitioner with a formal Warning for Failure to Depart (Form I-229(a)), along with an instruction sheet listing actions that petitioner was required to complete within 30 days to assist in obtaining a travel document for his removal from the United States. Id. at 10. The warning form advised petitioner, among other things, of penalties under INA § 243, for conniving or conspiring to prevent or hamper his departure from the United States, and also advised him that, pursuant to INA § 241(a)(1)(C), a failure to comply or to provide sufficient evidence of his inability to comply may result in the extension of the removal period and subject him to further detention. Id.

In August 2012, DHS conducted a review of petitioner's custody status, in accordance with immigration regulations. Id. at 7-9. On August 21, 2012, DHS issued a Decision to Continue Detention advising petitioner that, based upon the totality of information available in his file, including his criminal history and active orders of protection, DHS determined that petitioner would be a threat to the community if he were to be released from custody. Id. at 8.

According to DHS records, between August 2012 and January 2013, DHS representatives had regular contact with the Consulate regarding the status of the request for a travel document for petitioner. Item 5-1, ¶ 15. On October 12, 2012, petitioner was personally interviewed by First Secretary Shahedul Islam at the Bangladeshi Consulate in New York City. Following the interview, Mr. Islam stated that Petitioner's case was pending verification with the Ministry of Foreign Affairs and that Mr. Islam would try to have a travel document issued within two months. Id. at ¶ 16. On November 15, 2012, DHS faxed Mr. Islam a letter from petitioner requesting that a travel document be issued for his return to Bangladesh. Item 5-2, pp. 18-19.

Also in November 2012, DHS Headquarters Custody Management Unit ("HQCMU") conducted of further review of petitioner's custody status, including an in-person interview of petitioner on November 8, 2012, at the Buffalo Federal Detention Facility in Batavia, New York, where he currently resides. Id. at 5-6. Following completion of the file review and interview, petitioner was notified on December 4, 2012, that DHS determined to continue his detention in DHS custody. Id. at 3-4.

On January 23, 2013, the Consulate issued a travel document for petitioner, valid for his return to Bangladesh until July 22, 2013. Id. at 2. Upon receipt of the travel document, DHS made arrangements for petitioner to be removed from the United States to Bangladesh on February 13, 2013. Item 5-1. ¶ 20.

On February 1, 2013, petitioner filed in the United States Court of Appeals for the Second Circuit a petition for review of the BIA's order of May 25, 2012, along with a motion for stay of removal. Item 5-2, p. 44. The petition for review and motion for stay of removal remain pending before the Second Circuit. Id.; see Hakim v. Holder, No. 13-0382 (2d Cir.) (Docket sheet, https://ecf.ca2.uscourts.gov).

Meanwhile, petitioner filed this action on December 14, 2012, seeking habeas corpus relief pursuant to 28 U.S.C. ยง 2241 on the ground that his continued post-final-removal order detention in DHS 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 ...


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