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Ruiz-Ibanez v. Holder

United States District Court, Second Circuit

November 6, 2013

RAUL RUIZ-IBANEZ, A36-964-665, 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; and TODD TRYON, Facility Director, Buffalo Federal Detention Facility, Respondents.

JOHN T. CURTIN, District Judge.

INTRODUCTION

Petitioner Raul Ruiz-Ibanez, 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 June 10, 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 reply (Item 6).

For the reasons that follow, the petition is denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petitioner, a native and citizen of Panama, was admitted to the United States at Miami, Florida, on or about July 13, 1982, with IR2 immigration status (Immediate Relative-Unmarried Child Under 21 Years of Age of a U.S. Citizen). 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:

a. On or about April 8, 1995, petitioner was convicted in Syracuse, New York, City Court of Criminal Possession of a Controlled Substance (cocaine) in the 7th Degree, and was sentenced to 3 years probation.

b. On or about March 19, 1996, petitioner was convicted in Dewitt, New York, Town Court of Petit Larceny, and was sentenced to 3 years probation. On January 28, 1997, petitioner was convicted of violating the conditions of probation, and was re-sentenced to a 6-month term of incarceration.

c. On or about March 10, 1997, petitioner was convicted in Syracuse City Court of Criminal Possession of Marijuana in the 4th Degree, and was sentenced to 90 days incarceration.

d. On or about March 3, 1998, petitioner was convicted in Syracuse City Court of Criminal Possession of Marijuana in the 5th Degree, and was granted a conditional discharge.

e. On or about October 6, 1999, petitioner was convicted in Onondaga, New York, County Court of Criminal Possession of Marijuana in the 2nd Degree, and was sentenced to 5 years probation. On August 7, 2002, petitioner was convicted of violating the conditions of probation, and was re-sentenced to a 1-year term of incarceration.

f. Also on August 7, 2002, petitioner was convicted in Onondaga County Court of Criminal Possession of a Controlled Substance in the 3rd Degree (narcotic drug, with intent to sell) and Robbery in the 1st Degree (display of apparent firearm). He was sentenced to a term of incarceration of 8-16 years on the drug conviction, and a term of incarceration of 8 years on the robbery conviction.

Id. at ¶ 6.

On July 3, 1998, petitioner was encountered by DHS officers at the Onondaga County Jail and, upon verification of his immigration status, was served a Form I-862 Notice to Appear ("NTA") charging him with being subject to removal from the United States pursuant to Section 237(a)(2)(B)(I) of the Immigration and Nationality Act ("INA") (8 U.S.C. § 1227(a)(2)(B)(I)), as an alien who has been convicted of a controlled substance offense. Item 4-2 (Exh. A to Payan Decl.), pp. 19-21. On December 9, 1998, petitioner was served with notice of an additional charge of being subject to removal pursuant to INA § 237(a)(2)(A)(iii) (8 ...


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