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Bhagchandani v. Recovery Plus, B.P.G.

United States District Court, Second Circuit

September 6, 2013

KISHORE KUMAR BHAGCHANDANI, Petitioner,
v.
RECOVERY PLUS, B.P.G., and FIELD OFFICE DIRECTOR, ICE Respondents.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Pro se petitioner Kishore Kumar Bhagchandani ("Petitioner") is an alien under a final immigration order of removal, currently permitted to reside at large under an Order of Supervision issued by the Department of Homeland Security ("DHS") pending his repatriation to Pakistan. He has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking a change in the status of the removal order issued against him and also requesting "discharge from hospital to home out patient." Petition ("Pet."), p. 1 (Dkt #1).

II. Factual Background and Procedural History

Petitioner is a native and citizen of Pakistan, who was admitted to the United States at New Orleans, Louisiana, on or about June 21, 1983, as a lawful permanent resident. On April 12, 2007, Petitioner was placed in DHS custody at the Buffalo Federal Detention Facility ("BFDF") in Batavia, New York, and served with a Notice to Appear ("NTA"). The NTA charged him, pursuant to Immigration and Nationality Act ("INA") § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), with being subject to removal from the United States as an alien who had been convicted of two crimes involving moral turpitude not arising out of a single scheme of misconduct; pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who had been convicted of an aggravated felony as defined in INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), a crime of violence; and pursuant to INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), as an alien who had been convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect or child abandonment.

On July 3, 2007, an immigration judge ordered Petitioner removed from the United States to Pakistan.[1] Petitioner remained detained in DHS custody.

In accordance with immigration regulations, DHS reviewed Petitioner's custody status on several occasions. On December 11, 2008, DHS notified Petitioner that he would be released from custody under the Enhanced Supervised Release program. On December 12, 2008, Petitioner was released from DHS custody pursuant to an Order of Supervision. As a condition of his release, a Global Positioning System ("GPS") was attached to his ankle, but on December 30, 2008, Petitioner removed the GPS unit.

Pursuant to a Notice of Revocation of Release issued by DHS on December 31, 2008, Petitioner was re-arrested by the DHS Fugitive Operations Team and placed in DHS custody on December 31, 2008, for failing to abide by the conditions of the Order of Supervision.

On February 26, 2009, Petitioner was re-released from DHS custody pursuant to another Order of Supervision. At the present time, Petitioner remains under DHS supervision and is permitted to be at large under the conditions set forth in the Order of Supervision and Addendum, pending his removal from the United States.

In his pro se habeas petition filed April 27, 2012, Petitioner requests the following relief: "discharge from Hospital B.P.C to home outpatient" and "immigration officer will change status a.s.a.p." Pet., p. 3 (Dkt #1). Petitioner has submitted two motions seeking "discharge from Recovery Plus of North Tonawanda and Carousel Park Apartments to home outpatient with good quality care...." Motion for Discharge, p. 1 (Dkt #6); see also Dkt ##7, 8, 9, & 10.

By Order dated May 9, 2012, the Court (Curtin, D.J.) deemed the petition amended to remove "Jude Hammer, Nurse" as a respondent and to add "Field Office Director, ICE" as a new respondent. The case caption continues to include "RECOVERY PLUS, B.P.G. [sic]", an entity that respondent Field Office Director's attorneys are unable to identify. They surmise it refers to the "Buffalo Psychiatric Center (Hospital)", about which Petitioner also complains in his Petition. See Pet., p. 2, ¶ 2(c) (Dkt. #1).

Respondent answered the petition and concomitantly moved to dismiss the petition pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that there is no basis for the Court to assume habeas jurisdiction over the claims asserted by Petitioner regarding his removal status. Respondent also asserts that there is no factual or legal basis for Petitioner's request for habeas relief as he is not detained in DHS custody but rather is released under an order of supervision. Petitioner has not opposed Respondent's motion to dismiss.

III. Discussion

A. The District Court Lacks Jurisdiction to Review Petitioner's Habeas Claim ...


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