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Adegbite v. Holder

United States District Court, Second Circuit

May 9, 2013

ADEBANJO A. ADEGBITE, A37-552-467, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General TODD TRYON, Asst. Field Office Director IMMIGRATION AND CUSTOMS ENFORCEMENT, Respondents.

INTRODUCTION

JOHN T. CURTIN, District Judge.

Petitioner Adebanjo A. Adegbite, 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 (Item 2), respondent[1] has submitted an answer and return (Item 4), along with an accompanying memorandum of law (Item 5), 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 Nigeria, was admitted to the United States on August 21, 1982, as a lawful permanent resident. See Item 4-1 (Declaration of DHS Deportation Officer Juanita Payan), § 5; Item 4-2 (Exh. A to Payan Decl.), p. 20. DHS records reflect that petitioner was convicted of the following criminal offenses while present in the United States:

a. On or about September 16, 1992, petitioner was convicted in the Superior Court, Providence, Rhode Island, of fraudulent use of a credit card, in violation of Section 11-94-4 of the General Laws of Rhode Island.
b. On or about July 14, 1993, petitioner was convicted in the United States District Court for the Eastern District of New York, on a plea of guilty to a charge of using an unauthorized access device ( i.e., a credit card), in violation 18 U.S.C. § 1029(a)(2). He was sentenced to a 4 month term of incarceration followed by a 4 month period of house arrest and 2 years supervised release.
c. On or about June 3, 2010, petitioner was convicted in New York State Supreme Court, Queens County, of Enterprise Corruption, in violation of N.Y. Penal Law § 460.20. He was sentenced to a term of incarceration of 18 months to 54 months.

Item 4-1, § 6; Item 4-2, pp. 20, 35-43.

Petitioner's immigration removal proceedings commenced in December 1993 by service of an Order to Show Cause charging him with being removable from the United States, pursuant to § 241(a)(2)(A)(ii) of the Immigration and Nationality Act ("INA"), as an alien convicted of two crimes involving moral turpitude not arising from a single scheme of criminal misconduct. Item 4-2, at 20, 24. In 1997, petitioner was served with an additional charge of deportability, which charged him with being deportable as an alien convicted of an aggravated felony pursuant to INA § 241(a)(2)(A)(iii).[2] Id. at 41.

On September 9, 1997, an Immigration Judge ("IJ") ordered petitioner deported to Nigeria. Id. at 19. Petitioner submitted an appeal to the Board of Immigration Appeals ("BIA"), accompanied by an application for waiver of inadmissibility pursuant to INA § 212(c). On November 30, 2001, the BIA remanded petitioner's case to an immigration judge for a hearing on the application for waiver of inadmissibility. Id. at 17.

On October 11, 2005, IJ Gabriel Videla issued a summary order denying petitioner's § 212(c) application, and once again ordering petitioner deported to Nigeria. Id. at 16. This order became the final order of removal when, on May 11, 2007, the BIA dismissed petitioner's appeal from IJ Videla's order. Id. at 14-15. On June 11, 2007, petitioner filed a motion to reopen and reconsider, and the BIA denied the motion by written decision dated September 7, 2007. Id. at 11-13.

As indicated above, in June 2010, petitioner was convicted in Queens County Court of Enterprise Corruption in violation of N.Y. Penal Law § 460.20, and was sentenced to a period of 18-54 months incarceration in the custody of the New York Department of Correctional Services ("DOCS, " reorganized in 2011 and renamed the Department of Corrections and Community Supervision ("DOCCS")). See Item 4-1, § 6(c). On October 29, 2010, petitioner was encountered by DHS officers at the Ulster Correctional Facility in Napanoch, New York, and upon verification of his immigration status, an immigration detainer was lodged against him at the correctional facility. See Item 4-2 at pp. 25-26.

On May 9, 2012, upon his release from DOCCS' custody, petitioner was received into DHS custody and taken to the Buffalo Federal Detention Center in Batavia, New York. Id. at 28. According to DHS records, on March 19, 2012, DHS sent a presentation packet to the Consulate General of Nigeria (the "Consulate") in New York City requesting that a travel document be issued for petitioner. Id. at 27. On May 23, 2012, DHS 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 5-6. The warning form advised petitioner, among other things, of criminal penalties under the INA for conniving or conspiring to prevent or hamper his departure from ...


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