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Dookhan v. Holder

United States District Court, Second Circuit

May 9, 2013

ARNOLD DOOKHAN, A97-523-803, Petitioner,
v.
ERIC HOLDER, Attorney General of the United States; MICHAEL PHILIPS, District Director for Detention and Removal, Buffalo Field Office, Bureau of Immigration and Customs Enforcement; DEPARTMENT OF HOMELAND SECURITY; TODD TRYON, Facility Director, Buffalo Federal Detention Facility, Respondents.

INTRODUCTION

JOHN T. CURTIN, District Judge.

Petitioner Arnold Dookhan, 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 the court's order entered January 16, 2013 (Item 5), respondent[1] has submitted an answer and return (Item 8), along with an accompanying memorandum of law (Item 9), and petitioner has submitted a response in reply (Item 11).

For the reasons that follow, the petition is denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petitioner, a native and citizen of Guyana, entered the United States at an unknown place and on an unknown date, and was not admitted or paroled after an inspection by an Immigration Officer. See Item 8-1 (Payan Decl., Exh. 1), § 5; see also Item 1, § 11. On February 21, 2007, petitioner was convicted of burglary in the first degree in violation of New York State Penal Law § 140.30 and was sentenced to a seven-year maximum term of incarceration and five years of post-release supervision. See Item 4-1, § 6.

On March 12. 2007, while at the Ulster Correctional Facility in Napanoch, New York, petitioner was encountered by immigration officers. See Item 8-1, § 7. Deportation proceedings were commenced by a Notice to Appear ("NTA") dated May 14, 2007, which charged petitioner with being subject to removal from the United States pursuant to § 212(a)(6)(A)(I) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(A)(I), as an alien present in the United States without being admitted or paroled, and pursuant to INA § 212 (a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(iii), as an alien convicted of a crime involving moral turpitude. Id. at § 8; see also Item 8-2 (Exh. A), pp. 10-12.

On February 28, 2008, an Immigration Judge ("IJ") ordered petitioner's removal from the United States to Guyana. Item 8-1, § 9. On June 8, 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 8-1, § 10.

On June 12, 2012, DHS sent a presentation packet to the Embassy of Guyana (the "Embassy") in Washington, D.C., requesting that a travel document be issued for petitioner's removal. Item 8-1, § 11; Exh. A, p. 16. On September 5, 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 if released, and detention would be continued pending removal. Item 4-1, § 13; Exh. A, p. 4. On December 5, 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, § 14. Following completion of the file review and interview, petitioner was notified on January 4, 2013, that DHS had determined to continue his detention in DHS custody. Id., § 15; Exh. A, p. 2.

DHS records indicate that DHS representatives have attempted to contact or have contacted the Embassy on more than 20 occasions between July 2012 through February -. See Item 8-1, § 16. DHS representatives are working with Guyanese officials to obtain a copy of petitioner's birth certificate in order to verify his identity. Id., § 17. On January 3, 2013, DHS took petitioner's sworn statement regarding his birthplace in Guyana, which was forwarded to the Embassy in support of the request for a travel document. Id., § 18. At the present time, the request for a travel document for petitioner remains pending with the Embassy. Id., § 19.

Petitioner filed this action on December 7, 2012, seeking habeas corpus relief pursuant to 28 U.S.C. § 2241 on the ground that his continued detention in post-removalorder 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 the 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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