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Mohamed v. Holder

United States District Court, Second Circuit

June 7, 2013

MOHAMID MOHAMED, A042-162-296, 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; and TODD TRYON, Facility Director, Buffalo Federal Detention Facility, Respondents.

JOHN T. CURTIN, District Judge.

INTRODUCTION

Petitioner Mohamid Mohamed, 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 March 4, 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, and petitioner has submitted a sworn declaration in reply (Item 6).

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 New York, New York on February 10, 1990. See Item 4-1 (Declaration of DHS Deportation Officer Juanita Payan), ¶ 5. DHS records reflect that petitioner was convicted of the following criminal offenses while present in the United States:

On January 6, 1998, petitioner was convicted in the Queens County, New York Criminal Court, of driving while ability impaired by the consumption of alcohol. He was granted a conditional discharge, fined $300, and his driver's license was suspended for 90 days. Id. at ¶ 6(a).

On December 20, 2001, petitioner was convicted in the Queens County, New York Criminal Court, for operating a motor vehicle with.10 of 1% alcohol - first offense. He was granted a conditional discharge, fined $750 and his driver's license was revoked. Id at ¶ 6(b).

On September 7, 2007, petitioner was convicted in the New York State Supreme Court, Kings County, of Operating a Motor Vehicle.08 of 1% alcohol or more - prior conviction designated offense within 10 years. Id at ¶ 6(c).

On October 20, 2008, petitioner was convicted in the Kings County, New York Criminal Court, of attempted criminal contempt in the 2nd degree, in violation of New York State Penal Law Section 110-215.50. He was sentenced to 90 days imprisonment and a 5-year order of protection was issued. Petitioner subsequently filed a motion to vacate the judgment of conviction pursuant to New York State Criminal Procedure Law Section 440.10(h). Id at ¶ 6(d). This motion was denied by the Criminal Court, Kings County, New York, by a Decision and Order dated February 28, 2013. See Item 4-2 (Exh. A to Payan Decl.), pp. 39-47.

On December 23, 2010, upon his release from the New York State Department of Corrections and Community Supervision ("NYSDOCCS"), petitioner was placed into DHS custody and served with a Notice to Appear ("NTA") for removal proceedings before an immigration judge. Item 4-1, ¶ 7. The NTA charged petitioner with being removable from the United States pursuant to Immigration and Nationality Act ("INA") § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii), as an alien who at any time after entry has been enjoined under a protection order and has been determined to have engaged in conduct in violation of that order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons from whom the protection was issued. See Item 4-2, pp. 25-27.

On January 5, 2011, petitioner was transferred from DHS custody to the custody of NYSDOCCS pursuant to a Writ of Habeas Corpus Ad Prosequendum pending the disposition of several state criminal charges. Item 4-1, ¶ 8.

On February 10, 2011, petitioner was convicted in the New York State Supreme Court, Queens County, upon verdict after a jury trial, of two counts of criminal mischief in the 3rd degree; assault in the 3rd degree; criminal contempt in the 1st degree; and criminal possession of a weapon in the 4th degree. Item 4-2, p. 5. He was sentenced to a term of imprisonment of 2 to 4 years. Item 4-1, ¶ 6(e). His appeal from this conviction was denied by the Appellate Division, Second Department, by Decision and Order dated March 6, 2013. People v. Mohamed, 960 N.Y.S.2d 319 (App. Div. 2d Dep't 2013).

On May 9, 2012, while petitioner was still in NYSDOCCS' custody, Immigration Judge Roger F. Sagerman issued a detailed decision denying petitioner's request for cancellation of removal and ordering him removed from the United States to Guyana based upon the charge in the NTA. Item 4-2, pp. 16-24. Petitioner appealed this decision to the Board of ...


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