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Flores v. Holder

United States District Court, Second Circuit

June 7, 2013

EDSON FLORES, Petitioner,
v.
ERIC H. HOLDER, Attorney General of the United States; MICHAEL PHILIPS, Field Office Director for Detention and Removal, Buffalo Field Office, Bureau of Immigration and Customs Enforcement; DEPARTMENT OF HOMELAND SECURITY, MARTIN HERON, Buffalo Federal Detention Facility, Respondents.

JOHN T. CURTIN, District Judge.

INTRODUCTION

Petitioner Edson Flores, 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 14, 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 a reply (Item 9) and a memorandum of law (Item 8). For the reasons that follow, the petition is denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petitioner, a native and citizen of Honduras, arrived in the United States at an unknown place, on an unknown date, without being admitted or paroled after inspection by an Immigration officer. See Item 4-1 (Payan Decl.), ¶ 5; Item 1, ¶ 1.

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

-On or about December 22, 2008, petitioner was convicted in New York County Supreme Court, State of New York, of two counts of Sexual Abuse in the First Degree, in violation of N.Y. Penal Law § 130.65 and was sentenced to a term of incarceration of 42 months.
-On or about January 29, 2009, petitioner was convicted in New York County Supreme Court, State of New York, of two counts of Sexual Abuse in the First Degree, in violation of N.Y. Penal Law § 130.65 and was sentenced to a term of incarceration of 42 months.

See Item 4-2 ("Exh. A"), pp. 6, 12.

On April 9, 2009, while at the Ulster Correctional Facility in Napanoch, New York, petitioner was encountered by DHS Criminal Alien Program officers. See Item 4-1, ¶ 8. Deportation proceedings were commenced by a Notice to Appear ("NTA") served May 6, 2009, 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. Upon his release from the custody of the New York State Department of Corrections and Community Supervision, petitioner was received into DHS custody on June 10, 2011. Payan Decl., ¶ 10, Exh. A, pp. 7, 19. On July 21, 2011, petitioner was served with additional charges 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 ¶ 11; Exh. A, pp. 12-13.

On January 6, 2012, an Immigration Judge ("IJ") ordered petitioner's removal to Honduras. Payan Decl., ¶ 12. The removal order became final on May 22, 2012, when the Board of Immigration Appeals ("BIA") dismissed petitioner's appeal from the IJ's decision. Id., Exh. A, p.10.

On May 23, 2012, DHS sent a presentation packet to the Consulate General of Honduras (the "Consulate") in New York, New York, requesting that a travel document be issued for petitioner's removal. Exh. A, p. 19. On May 24, 2012, the Consulate issued a travel document which was valid for 30 days. Id., p. 18.

On June 15, 2012, petitioner filed a petition for review of the BIA's May 22, 2012 decision in the United States Court of Appeals for the Second Circuit. Exh. A, pp. 20-22. The petition for review was accompanied by a request for a stay of removal. Id.

On June 27, 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. 9. 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 ...


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