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Jones v. Holder

United States District Court, Second Circuit

June 13, 2013

HERALD A. JONES, A24-505-334, Petitioner,
v.
ERIC H. HOLDER, Attorney General of the United States; JANET NAPOLITANO, Secretary of Security U.S. Department of Head of Homeland Security; MICHAEL PHILIPS, Field Office 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.

JOHN T. CURTIN, District Judge.

INTRODUCTION

Petitioner Herald Jones, 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 April 1, 2013 (Item 3), respondent[1] has submitted an answer and return (Item 5), along with an accompanying memorandum of law (Item 6), and petitioner has submitted a reply and memorandum of law (Items 8, 9).

For the reasons that follow, the petition is denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petitioner, a native and citizen of Jamaica, 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 5-1 ("Payan Decl."), ¶ 5; see also Item 1, ¶ 12. Petitioner has the following criminal history:

On or about February 25, 1982, petitioner was convicted in New York State Supreme Court, Kings County, of criminal possession of a firearm in the third degree. He was sentenced to a one-year term of incarceration.
On or about November 3, 1983, petitioner was convicted in New York State Supreme Court, Kings County, of robbery in the first degree, burglary in the first degree, and robbery in the second degree. He was sentenced to a term of incarceration of eight to sixteen years.
On or about March 19, 1998, petitioner was convicted in New York State Supreme Court, Kings County, of criminal possession of a loaded firearm in the third degree and two counts of criminal sale of a firearm in the third degree. He was sentenced to a term of incarceration of six years to life.

See Payan Decl., ¶ 6.

On August 20, 1987, petitioner was served with an Order to Show Cause which charged him with being deportable as an alien who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document. See Item 5-2 ("Exh. A"), p. 13. On October 5, 1992, an Immigration Judge ("IJ") ordered petitioner's removal from the United States to Jamaica. Payan Decl., ¶ 8; Exh. A, p. 12. On July 24, 2012, upon his release from custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), petitioner was received into DHS custody. Id., ¶ 9.

According to DHS records, on July 25, 2012, DHS sent a presentation packet to the Consulate General of Jamaica, (the "Consulate") in New York, New York, requesting that a travel document be issued for petitioner's removal. Payan Decl., ¶ 10; Exh. A, p. 15. On August 21, 2012, petitioner was interviewed by telephone by a representative of the Consulate. Payan Decl., ¶ 12.

In accordance with regulations, DHS reviewed petitioner's custody status in October 2012. On October 22, 2012, petitioner was notified that, 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. Payan Decl., ¶ 14; Exh. A, pp. 6-8. On January 24, 2013, 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. Payan Decl., ¶ 15. Following completion of the file review and interview, petitioner was notified on February 12, 2013, that DHS had determined to continue his detention in DHS custody. Payan Decl., ¶ 16; Exh. A, pp. 4-5. A further review of petitioner's custody status was conducted in April 2013 and petitioner was advised that DHS determined to continue his detention. Payan Decl., ¶ 17; Exh. A, pp. 2-3.

DHS records indicate that DHS representatives have attempted to contact or have contacted the Consulate on at least 15 occasions from September 2012 to the present. See Payan Decl., ¶ 13. A file note entry dated April 23, 2013 indicates that a representative of the Consulate reported that the Consulate was waiting for petitioner's sister to return a verification form in order to establish his identity. ...


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