United States District Court, W.D. New York
LUIS R. MORALES, A34-200-190, Petitioner,
ERIC H. HOLDER, Jr., U.S. Attorney General, TODD TRYON, Assistant Field Office Director U.S. Immigration and Customs Enforcement, MICHAEL T. PHILLIPS, Field Office Director, Respondents.
JOHN T. CURTIN, District Judge.
Petitioner Luis R. Morales, 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 an immigration order of removal issued against him. Item 1. As directed by this court's order entered November 19, 2013 (Item 3), 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 9). For the reasons that follow, the petition is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner, a native and citizen of Dominican Republic, was admitted to the United States at San Juan, Puerto Rico, on or about November 18, 1975, 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, 30. Petitioner has been convicted of the following criminal offenses while present in the United States:
a. On or about March 31, 1980, petitioner was convicted in the Bronx County Criminal Court, Bronx, New York, of Criminal Mischief in the 2nd Degree. He was adjudicated youthful offender status.
b. On or about February 20, 1981, petitioner was convicted in the Bronx County Supreme Court, Bronx, New York, of Attempted Burglary in the 3rd Degree. He was sentenced to a 1 year term of incarceration.
c. On or about February 1, 1983, petitioner was convicted in the Bronx County Criminal Court, Bronx, New York, of Criminal Mischief in the 4th Degree. He was sentenced to a 60 day term of incarceration.
d. On or about November 5, 1983, petitioner was convicted in the New York County Supreme Court, New York, New York, of Attempted Grand Larceny in the 3rd Degree. He was sentenced to an 18 month to 3 year term of incarceration.
e. On or about April 8, 1988, petitioner was convicted in the Bronx County Criminal Court, Bronx, New York, of Disorderly Conduct, to wit: fighting and violent behavior. He was sentenced to a term of incarceration of 10 days.
f. On or about May 17, 1995, petitioner was convicted in the Queens County Supreme Court, Kew Garden, New York, of Burglary in the 1st Degree, Robbery in the 1st Degree (2 counts), and Attempted Murder in the 2nd Degree (4 counts). For these offenses he was sentenced to a term of incarceration of 150 months to 25 years. Additionally, petitioner was convicted of Criminal Possession of a Weapon in the 2nd Degree for which he was sentenced to a term of incarceration of 90 months to 15 years. Petitioner was also convicted of Tampering with a Witness in the 3rd Degree for which he was sentenced to a term of incarceration of 2 to 4 years.
Id.. at 2-3, 29.
On June 7, 1995, petitioner was encountered by agents from the former Immigration and Naturalization Service ("INS") at the Green Haven Correctional Facility in Stormville, New York. Petitioner was interviewed regarding his immigration status and identified as an alien amenable to removal from the United States. Id. at 3.
On March 21, 2000, petitioner was placed in immigration removal proceedings by service of a Notice to Appear ("NTA") which charged him, pursuant to Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii), with being subject to removal from the United States as an alien who has been convicted of an aggravated felony, and pursuant to INA § 237(a)(2)(C) (8 U.S.C. § 1227(a)(2)(C)), as an alien having been convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, in violation of any law, any weapon, part or accessory which is a firearm or destructive device as defined in 18 U.S.C. § 921(a). Id. at 3, 27-30.
On September 28, 2000, an Immigration Judge ("IJ") denied petitioner's applications for relief from removal and ordered petitioner removed to the Dominican Republic. Id. at 3, 26. Petitioner filed a motion to reconsider, which was denied by the IJ on January 11, 2001. Id. at 3. Petitioner appealed the IJ's decision of January 11, 2001 to the Board of Immigration Appeals ("BIA"), id., and on April 10, 2001, the BIA dismissed petitioner's appeal. Id. at 23-25. Petitioner filed a motion to reconsider, which the BIA denied as untimely on July 12, 2001. Id. at 3, 21-22.
On August 13, 2001, while he was in the custody of the New York State Department of Correctional Services ("DOCS"; reorganized in 2011 and renamed the Department of Corrections and Community Supervision ("DOCCS")), petitioner filed in the United States District Court for the Eastern District of New York a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Item 7-3, pp. 16-19 (Docket Sheet, Morales v. Immigration and Naturalization Service, Civ. No. 01-CV-5507 (E.D.N.Y.)). The Eastern District court dismissed that petition on March 27, 2002. Id. at 17. Petitioner filed a motion for reconsideration, and on May 28, 2002, the district court denied the motion and transferred the matter to the United States Court of Appeals for the Second Circuit for consideration as a petition for review of the BIA's ruling. Id. at 18; see also Item 7-1, ¶ 12.
On March 28, 2003, the Second Circuit Court entered an order denying petitioner's citizenship claim and dismissing his petition for review. See Item 7-3, p. 13 (Second Circuit Docket Sheet, Morales v. INS, No. 02-4194). The record further reflects that the circuit court construed petitioner's previous district court motion for reconsideration as a timely notice of appeal from the dismissal of the § 2241 habeas petition, and later dismissed the appeal by order dated June 16, 2005. See Item 7-1, ¶ 13.
Petitioner filed several other requests for reconsideration and review by the federal courts, including a petition for a writ of certiorari in the Supreme Court of the United States, which the Court denied on October 4, 2004. See Item 7-3, p. 52 (U.S. Supreme Court Docket Sheet, Morales v. INS, No. 04-5341); see also Item 7-1, ¶¶ 14-15. He also filed a series of requests for reopening or reconsideration with the BIA, and on April 1, 2011, filed a petition with the Second Circuit for review of the BIA's denials of these requests. See Item 7-2, pp. 34-38 (Second Circuit Docket Sheet, Morales-Santana v. Holder, No. 11-1252). On March 22, 2013, the Second Circuit granted petitioner's motion for a stay of removal ( see Item 7-2, p. 43), and on July 16, 2013, the circuit court transferred the matter to this court for a hearing to determine whether petitioner's father would satisfy the one-year continuous presence requirement of 8 U.S.C. § 1409(c) for nationality and citizenship purposes, should the continuous presence requirement be found applicable to petitioner's case. See id. at 37; see also Item 7-1, ¶¶ 19, 23. On October 24, 2013, Hon. Richard J. Arcara entered a joint stipulation and order resolving the questions pending before the district court and transferring the matter back to the circuit court for resolution of the questions presented in the petition for review. See Item 7-2, p. 46 (Docket ...