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Lumanikio v. Holder

United States District Court, Second Circuit

October 10, 2013

AMBROISE NGAYINOKO LUMANIKIO, A201-219-057, Petitioner,
v.
ERIC H. HOLDER, Attorney General of the United States; WALTER M. INGRAM, Office of Enforcement and Removal Operations Post Order Custody Review Unit Chief; MICHAEL PHILIPS, Field Officer Director for Enforcement and Removal, Buffalo Field Office, Bureau of Immigration and Customs Enforcement, Department of Homeland Security; TOD TRYON, Facility Director, Buffalo Federal Detention Facility; SEAN CALLAGHER, Designated Field Office Director, ERO, Buffalo Detention Facility Detention; MR. SCHRADER, Supervisory Detention and Deportation Officer Buffalo Federal Detention Facility; MRS. HUNTHER, Deportation Officer Buffalo Federal Detention Facility, Respondents.

INTRODUCTION

JOHN T. CURTIN, District Judge.

Petitioner Ambroise Ngayinoko Lumanikio, an alien in the custody of the United States Department of Homeland Security, Immigration and Customs Enforcement (collectively, "DHS"), has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking release from detention at the Buffalo Federal Detention Facility in Batavia, New York, pending the execution of a final immigration order of removal issued against him. Item 1. As directed by this court's order entered June 5, 2013 (Item 4), respondent[1] has submitted an answer and return (Item 6), along with an accompanying memorandum of law (Item 7), in opposition to the petition, and petitioner has submitted a reply (Item 8).

For the reasons that follow, the petition is denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petitioner, a native and citizen of the Democratic Republic of the Congo, gained entry to the United States at Newark, New Jersey on or about April 4, 2011, as a non-immigrant B-2 visitor, by presenting an Angolan passport and visa in the name of Dedri Manuel Lando. Item 6-1 (Declaration of DHS Deportation Officer Juanita Payan), ¶ 5. DHS subsequently discovered that petitioner obtained the passport and visa by fraud, that his true name was Ambroise Ngayinoko Lumanikio, and that he was a citizen of the Congo and not a citizen of Angola. Id.

On July 21, 2011, petitioner was encountered by United States Customs and Border Protection at the Peace Bridge Port of Entry in Buffalo, New York, after being denied entry into Canada. Item 6-1, ¶ 6. During an interview with DHS officers, petitioner admitted that he previously entered the United States using an alias and fraudulent documentation. Item 6-2 (Exh. A to Payan Decl.), pp. 18-19. After verifying petitioner's identity and immigration status, petitioner was in placed in removal proceedings by a Notice to Appear ("NTA"), dated July 21, 2011, which charged him with being subject to removal from the United States pursuant to Section 237(a)(1)(A) of the Immigration and Nationality Act ("INA") (8 U.S.C. § 1227(a)(1)(A)), (1) as an alien who procured a visa, other documentation, or admission into the United States by fraud or by willfully misrepresenting a material fact under INA § 212(a)(6)(C)(i) (8 U.S.C. § 1182(a)(6)(C)(i)); and (2) 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 required by the Act. Item 6-1, ¶ 7; Item 6-2, pp. 13-15.

On April 26, 2012, an Immigration Judge ("IJ") issued an order denying petitioner's various requests for relief from removal and ordering him to be removed from the United States to the Democratic Republic of the Congo. Item 6-2, p.12. Petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), and the order of removal became final on October 12, 2012, when the BIA dismissed petitioner's appeal. Id. at 8-9; see 8 C.F.R. § 1241.1(a) (IJ's order of removal becomes final upon BIA's dismissal of appeal).

On October 16, 2013, DHS sent a presentation packet to the Embassy of the Democratic Republic of the Congo ("the Embassy") in Washington, D.C., requesting that a travel document be issued for petitioner's removal. Item 6-1, ¶ 10. DHS records also indicate that DHS representatives contacted the Embassy on eight occasions between November 2012 and January 2013 regarding the status of petitioner's travel document. Id. at ¶ 12.

On October 19, 2012, DHS served petitioner with a formal Warning for Failure to Depart (Form I-229(a)), 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. Item 6, ¶ 9. The warning form advised petitioner 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), failure to comply or to provide sufficient evidence of his inability to comply may result in the extension of the removal period and subject him to further detention. Id.

On November 8, 2012, petitioner filed a petition in the United States Court of Appeals for the Second Circuit seeking review of the BIA's denial of his appeal from the removal order, along with a motion for a stay of removal. Item 6-1, ¶ 13. On December 13, 2012, petitioner's motion for stay of removal was stricken from the docket by the Second Circuit for failure to comply with filing requirements. Id. at ¶ 14. On January 8, 2013, petitioner submitted a corrected motion for stay of removal, which was accepted for filing and remains pending before the Second Circuit. Id.

In accordance with immigration regulations, DHS conducted a review of petitioner's custody status in January 2013. Item 6, ¶ 13. On January 10, 2013, petitioner was notified that DHS determined to continue his detention. Id. Specifically, DHS determined that petitioner would "pose a serious risk of flight" because his "immigration record reveal[ed] a history of fraud" and because he lacked employment prospects, family ties, ties to the local community, or non-governmental sponsors to help him comply with any conditions of release. Item 6-2, pp. 6-7.

In April 2013, DHS Headquarters Post Order Custody Review Unit ("HQOPCRU") conducted a further review of petitioner's custody status, including an in-person interview of petitioner on April 4, 2013, at the Buffalo Federal Detention Facility. Item 6-1, ¶ 16. Following completion of the file review and interview, petitioner was notified on April 11, 2013, that DHS determined to continue his detention. Item 6-1, ¶ 17.

On December 8, 2012, petitioner filed a motion with the BIA to reopen his immigration removal proceedings. That motion was denied on February 4, 2013. Item 6-1, ¶ 18.

Petitioner filed this action on May 3, 2013, seeking habeas corpus relief pursuant to 28 U.S.C. § 2241 on the ground that his continued detention in post-final removal order custody is unlawful because it has exceeded the "presumptively reasonable" six-month period established under the due process standards established by the United States Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001). Upon full consideration ...


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