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Bennett v. Napolitano

United States District Court, Second Circuit

June 26, 2013

GARTH O'BRIEN BENNETT, A42-426-103, Petitioner,
JANET NAPOLITANO, Secretary of Security U.S. Department of Homeland Security; 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.


Petitioner Garth O'Brien Bennett, 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 April 2, 2013 (Item 3), respondent[1] has submitted an answer and return (Item 5), along with an accompanying memorandum of law (Item 6), in opposition to the petition[, and petitioner has submitted a reply (Items 7 & 8). For the reasons that follow, the petition is denied.


Petitioner, a native and citizen of Jamaica, was admitted to the United States as a lawful permanent resident, on or about June 24, 1990. See Item 5-1 (Declaration of DHS Deportation Officer Juanita Payan), ¶ 5.

DHS records reflect that on October 5, 2007, while petitioner was being held at the Monroe County Jail in Rochester, New York, pending trial on state robbery charges, an immigration detainer was lodged against him by DHS Criminal Alien Program Officers. Id. at ¶ 7. On January 4, 2008, petitioner was convicted in Monroe County Court on two counts of robbery in the second degree, in violation of the N.Y. Penal Code § 160.10(1). He was sentenced to a 54-month term of incarceration and five years post-release supervision, and was placed in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). Id. at ¶ 6.

On August 10, 2011, while in DOCCS' custody, petitioner was served with a Notice to Appear ("NTA") before an immigration judge to show cause why he should not be removed from the United States pursuant to Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227 (a)(2)(A)(iii), as being an alien convicted of an aggravated felony relating to crimes of violence as defined in INA § 101(a)(43)(F), and as an alien convicted of an aggravated felony relating to a theft or burglary offense, as defined in INA § 101(a)(43)(G). Id. at ¶ 8; Item 5-2 (Exh. A to Payan Decl.), pp. 12-14.

On February 29, 2012, Immigration Judge Roger F. Sagerman ordered petitioner removed from the United States to the United Kingdom or, alternatively, to Jamaica, based on the charges set forth in the NTA. Item 5-2, p. 11. Petitioner appealed the Immigration Judge's decision to the Board of Immigration Appeals ("BIA"). Id. at 10.

On March 23, 2012, upon his release from DOCCS' custody, petitioner was transferred to the custody of DHS for detention at the Buffalo Federal Detention Facility in Batavia, New York, pending execution of the Immigration Judge's order of removal, which became final on June 7, 2012, when the BIA dismissed petitioner's appeal. Item 5-1, ¶¶ 10, 11; see 8 C.F.R. § 1241.1(a) (immigration judge's order of removal becomes final upon BIA's dismissal of appeal). Immediately following the BIA's dismissal of petitioner's appeal, DHS took steps to execute the final order of removal. For example, on June 11, 2012, DHS sent a presentation packet to the Consulate General of Jamaica ("Consulate") in New York City requesting that a travel document be issued to facilitate petitioner's removal (Item 5-2, p. 17); on June 21, 2012, petitioner was interviewed by telephone by a Consulate representative (Item 5-1, ¶ 13); and, on June 27, 2012, DHS served petitioner with a formal Warning for Failure to Depart (Form I-229(a)), along with instructions for required action within 30 days to assist in the procurement of travel documents (Item 5-2, p. 9).

On July 12, 2012, petitioner filed in the United States Court of Appeals for the Second Circuit a petition for review of the BIA's dismissal order, along with a motion for stay of removal. See Item 5-2, pp. 18-20 (Docket Sheet, Bennett v. Holder, 2d Cir. Docket No. 12-2764). As of the date of entry of this decision and order, the petition for review and motion for stay remain pending with the Second Circuit.

Meanwhile, DHS has conducted repeated reviews of petitioner's custody status, in accordance with immigration regulations. Specifically, in September 2012, the Office of Enforcement and Removal Operations ("ERO") reviewed petitioner's file and notified him that, based on the available information-including his criminal history-his detention would be continued because he would be a threat to the community and a flight risk if he were to be released from custody. See Item 5-2, pp. 6-7. Further custody review was conducted by DHS Headquarters Post Order Custody Review Unit ("HQPOCRU") in December 2012 and March 2013. See id. at 2-5. On March 21, 2013, HQPOCRU Chief Walter M. Ingram issued a Decision to Continue Detention advising petitioner that DHS was "unable to move forward" with his removal due to the petition for review pending with the Second Circuit. Id. at 2.

Petitioner filed this action on March 22, 2013, seeking habeas corpus relief pursuant to 28 U.S.C. § 2241 on the ground that his continued detention in post-removal-order 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.


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 § ...

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