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Johnson v. Holder

United States District Court, W.D. New York

January 29, 2014

LYNDEN BRENNEN JOHNSON, A29-815-640, Petitioner,
v.
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.

INTRODUCTION

Petitioner Lynden Brennen Johnson, an alien in the custody of the United States Department of Homeland Security, Immigration and Customs Enforcement (collectively, "DHS"), 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, [1] pending the execution of a final immigration order of removal issued against him. Item 1. As directed by this court's order entered October 15, 2013 (Item 2), respondent[2] 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 (Item 7). For the reasons that follow, the petition is denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petitioner, a native and citizen of the Bahamas, entered the United States at Newark, New Jersey, on December 27, 1990, as a B2 non-immigrant visitor for pleasure. See Item 5-2 (Exh. A attached to Declaration of DHS Deportation Officer Juanita Payan (Item 5-1)), pp. 8, 22. His status was adjusted to Lawful Permanent Resident on January 22, 1992, upon approval by the U.S. Immigration and Naturalization Service ("INS") of petitioner's Form I-485 Application to Register Permanent Residence or Adjust Status. Id.

DHS records reflect that, while present in the United States, petitioner was convicted of the following criminal offenses:

a. On or about September 16, 1998, petitioner was convicted in the United States District Court for the Southern District of New York of Theft/Embezzlement of U.S. Property (Post Office Embezzlement), in violation of Title 18, United States Code, Section 641. He was sentenced to a term of probation of 18 months and ordered to pay restitution in the amount of $3, 840.
b. On or about May 29, 2012, petitioner was convicted in the Supreme Court, State of New York, Kings County, of Criminal Sexual Act in the 2nd Degree, in violation of New York State Penal Law Section 130.45(1). He was sentenced to a term of incarceration of 18 months, subsequently reduced on re-sentencing to a 1-year term of incarceration.

Id. at 8-9, 22.

On August 21, 2012, petitioner was taken into DHS custody upon his release from the custody of the New York State Department of Corrections and Community Supervision ("NYSDOCCS"). Id. at 9. He was placed in immigration removal proceedings by a Notice to Appear ("NTA"), served on August 24, 2012, which charged him with being subject to removal from the United States, pursuant to Immigration and Nationality Act ("INA") § 237(a)(2)(A)(iii) (8 U.S.C. § 1227(a)(2)(A)(iii)), as an alien who has been convicted of an aggravated felony crime as defined in INA § 101(a)(43)(A) (8 U.S.C. § 1101(a)(43)(A)) (sexual abuse of a minor), and as an alien who has 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 for which the term of imprisonment is at least one year); and pursuant to INA § 237(a)(2)(E)(i) (8 U.S.C. § 1227(a)(2)(E)(i)), as an alien who has been convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect or child abandonment. Id. at 20-22.

On December 13, 2012, an immigration judge ("IJ") ordered petitioner removed from the United States to the Bahamas. Id. at 18-19. Petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), and on April 10, 2013, the BIA dismissed the appeal. Id. at 13-17.

On or about April 16, 2013, DHS sent a presentation packet to the Consulate General of the Bahamas ("Consulate") in New York, New York, requesting that a travel document be issued for petitioner's removal. Id. at 25-29. On April 18, 2013, DHS served petitioner 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. Id. at 12. The warning form advised of penalties under INA § 243 (8 U.S.C. § 1253), for conniving or conspiring to prevent or hamper his departure from the United States, and also advised that, pursuant to INA § 241(a)(1)(C) (8 U.S.C. § 1231 a)(1)(C)), a failure to comply or provide sufficient evidence of his inability to comply may result in the extension of the removal period and subject him to further detention. Id. A notation on the NTA indicates that petitioner refused to sign the form. Id.

On May 7, 2013, petitioner filed a pro se petition in the United States Court of Appeals for the Second Circuit seeking review of the BIA's dismissal of his appeal from the IJ's removal order, accompanied by a request for stay of removal. See id. at 30-32 (Docket Sheet, Johnson v. Holder, 2d Cir. Dkt. No. 13-1782). This court's check of the Second Circuit's Public Access to Court Electronic Records ("PACER") service ...


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