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Obeya v. Holder

United States District Court, Second Circuit

May 9, 2013

CLEMENT OBEYA, Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General of the United States; MICHAEL PHILIPS, Field Office Director, Office of Enforcement and Removal Operations, Buffalo Field Office, Department of Homeland Security, Bureau of Immigration and Customs Enforcement; SEAN CALLAGHER, Designated Field Office Director, ERO Buffalo Federal Detention Facility, TODD TRYON, Assistant Field Office Director, Buffalo Federal Detention Facility, MILLER JONES, Supervisory Detention and Deportation Officer, Buffalo Federal Detention Facility; and JEFFREY CRANE, Deportation Officer, Buffalo Federal Detention Facility, Respondents.

INTRODUCTION

JOHN T. CURTIN, District Judge.

Petitioner Clement Obeya, 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 February 6, 2013 (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. In response, petitioner has filed what he has titled a "Motion for Summary Judgment" (Item 6) and a supporting memorandum of law (Item 7). For the reasons that follow, the petition is denied.[2]

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petitioner, a native and citizen of Nigeria, was admitted to the United States at New York, New York on or about August 12, 2004, as a lawful permanent resident. See Item 4-1 (Payan Decl.), § 5; Item 1, § 13.

According to DHS records, petitioner has the following criminal history:

-On or about February 11, 2010, petitioner was convicted in Albany County Court, State of New York, of Petit Larceny, in violation of N.Y. Penal Law § 155.25 and was sentenced to 3 years probation.
-On or about April 5, 2010, petitioner was convicted in Albany City Court, State of New York, of Criminal Trespass in the Second Degree.
-On or about February 11, 2011, petitioner was arrested in Albany, New York and charged with Forgery in the Second Degree, Grand Larceny in the Fourth Degree, Identity Theft in the Second Degree, and Petit Larceny. On or about September 28, 2011, petitioner was sentenced to ten months incarceration for violation of probation.

See Item 4-2 ("Exh. A"), pp. 5, 27, 29.

Petitioner was placed in removal proceedings by a Notice to Appear, served February 25, 2009, which charged him with being subject to removal from the United States for the violation of the Immigration and Nationality Act ("INA")-specifically, section 237(a)(2)(A)(I), 8 U.S.C. § 1227(a)(2)(A)(I) (conviction of a crime of moral turpitude). Item 4-1, § 7; Exh. A, pp. 17-18. On March 13, 2009, petitioner was released from DHS custody after posting a $5, 000 bond. Item 4-1, § 8, Exh. A, p. 5. On February 10, 2010, an Immigration Judge ("IJ") terminated removal proceedings without prejudice for failure to prosecute. Item 4-1, § 9; Exh. A, pp. 19-20. By order dated March 9, 2010, an IJ granted the motion of DHS to reopen petitioner's removal proceedings. Item 4-1, § 10; Exh. A, pp. 21-22.

On May 16, 2011, an IJ ordered petitioner's removal to Nigeria in absentia. However, it was determined that petitioner was in custody at the Albany County Jail in Albany, New York. Item 4-1, § 11. Thereafter, DHS filed a motion to reopen the removal proceedings, which was granted on June 14, 2011. Id., § 12. Upon his release from the Albany County Jail on October 4, 2011, petitioner was received into DHS custody. Id., § 13. On March 13, 2012, an IJ ordered petitioner removed from the United States to Nigeria. Exh. A, pp. 10-11. The removal order became final on August 7, 2012, when the Board of Immigration Appeals ("BIA") dismissed petitioner's appeal from the IJ's decision. Id. p. 9.

On August 15, 2012, DHS sent a presentation packet to the Consulate General of Nigeria (the "Consulate") in New York, New York, requesting that a travel document be issued for petitioner's removal. Exh. A, p. 25. On August 20, 2012, petitioner filed a petition for review of the BIA's August 7, 2012 decision in the United States Court of Appeals for the Second Circuit. Exh. A, pp. 30-32. The petition for review was accompanied by a request for a stay of removal. Id.

On August 21, 2012, DHS served petitioner with a formal Warning for Failure to Depart, 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. Exh. A, p. 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 November 2012, DHS conducted a review of petitioner's custody status, in accordance with immigration regulations. Exh. A, pp. 5-6. On or about November 5, 2012, DHS issued a Decision to Continue Detention advising petitioner that, based upon the totality of information available in his file, DHS determined that ...


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