United States District Court, W.D. New York
JOHN T. CURTIN, District Judge.
Petitioner Edwin Galarza, 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 August 28, 2013 (Item 2), respondent has submitted an answer and return (Item 7), along with an accompanying memorandum of law (Item 8), in opposition to the petition, and petitioner has submitted a reply (Item 10). For the reasons that follow, the petition is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner, a native and citizen of Ecuador, was admitted to the United States at New York, New York, on or about June 21, 2007, as a lawful permanent resident. See Item 7-2 (Exh. A attached to Declaration of DHS Deportation Officer Juanita Payan (Item 7-1)), pp. 2, 13. DHS records reflect that, on or about January 3, 2011, petitioner was convicted in New York State Supreme Court, Suffolk County, of Criminal Sale of a Controlled Substance in the 2nd Degree (heroin), in violation of N.Y. Penal Law § 220.41(00). Id. at 7, 13. He was sentenced to a term of incarceration of 54 months, and 5 years post-release supervision. Id. at 7.
On January 13, 2011, while incarcerated at the Ulster Correctional Facility in Napanoch, New York, petitioner was he was encountered by DHS agents assigned to the Criminal Alien Program. Id. After his immigration status was verified, petitioner was placed in immigration removal proceedings by service of a Notice to Appear ("NTA"), dated March 29, 2011, which charged petitioner 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)(B) (8 U.S.C. § 1101(a)(43)(B)) (an offense relating to the trafficking in a controlled substance), and pursuant to INA § 237(a)(2)(B)(I) (8 U.S.C. § 1227(a)(2)(B)(I)), as an alien who has been convicted of a controlled substance offense. Id. at 13-15.
On November 7, 2011, 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 7, 18.
On June 22, 2012, an immigration judge ("IJ") ordered petitioner removed from the United States to Ecuador. Id. at 12. Petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), and on November 28, 2012, the BIA dismissed petitioner's appeal. Id. at 7, 11.
On or about November 30, 2012, DHS sent a presentation packet to the Consulate General of Ecuador ("Consulate") in New York City, requesting that a travel document be issued for petitioner's removal. Id. at 18. On December 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. Id. at 10. The warning form advised petitioner, among other things, 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 him 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.
On December 20, 2012, petitioner filed in the United States Court of Appeals for the Second Circuit a pro se petition 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 19-21 (Docket Sheet, Ruiz v. Holder, 2d Cir. Docket No. 12-5044).
DHS records reflect that on December 27, 2012, DHS was notified by a representative of the Consulate that a travel document would not be issued for petitioner "until all appeals/petitions were exhausted." Item 7-1, ¶ 14.
In February 2013, in accordance with immigration regulations ( see 8 C.F.R. § 241.4), DHS conducted a 90-day review of petitioner's custody status, and on March 1, 2013, issued a "Decision to Continue Detention" advising petitioner that, based upon the totality of information available in his file-in particular, his criminal history showing "wanton disregard for the laws of the United States"-DHS had determined that he would be a threat to the safety and security of the community if he were to be released from custody. Item 7-2, p. 8. Further review of petitioner's custody status was conducted by DHS Headquarters Post Order Custody Review Unit ("HQPOCRU") in May and September -. Following each review, petitioner was notified that DHS determined to continue his detention in DHS custody. Id. at 2-3, 4-6.
Petitioner filed this action on August 7, 2013, seeking habeas corpus relief pursuant to 28 U.S.C. § 2241 on the ground that his continued detention in DHS custody since November 7, 2011 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 ...