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Fofana v. Holder

United States District Court, W.D. New York

May 3, 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

Decided May 1, 2013.

Bazoumana Fofana, Petitioner, Pro se, Batavia, NY.

For Eric Holder, Attorney General, Janet Napolitano, Secretary of DHS, Michael Phillips, District Director, Todd Tryon, Asst. Field Office Director, Immigration and Customs Enforcement, Respondents: Gail Y. Mitchell, LEAD ATTORNEY, U.S. Attorney's Office, Federal Centre, Buffalo, NY.

OPINION

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

Page 330

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[1] 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 nonimmigrant 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 ...


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