United States District Court, W.D. New York
Decided: April 30, 2014.
Raju Rodrigues Clarke, Petitioner, Pro se, Batavia, NY.
For Michael Phillips, Field Office Director et al, Respondent: Gail Y. Mitchell, LEAD ATTORNEY, U.S. Attorney's Office, Buffalo, NY.
JOHN T. CURTIN, United States District Judge.
Petitioner Raju Rodrigues Clarke, 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 (" BFDF" ), pending completion of immigration removal proceedings. Item 1. As directed by this court's order entered November 19, 2013 (Item 4), respondent has submitted an answer and return (Item 6), along with an accompanying memorandum of law (Item 7), in opposition to the petition. For the reasons that follow, the petition is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner, a native and citizen of Jamaica, was admitted to the United States at New York, New York, on or about December 6, 1984, as a lawful permanent resident. See Item 6-2 (Exh. A attached to Declaration of DHS Deportation Officer Juanita Payan (Item 6-1)), pp. 7, 11. On or about February 10, 2003, petitioner was convicted in the Onondaga County Court, State of New York, of Attempted Criminal Possession of a Controlled Substance with Intent to Sell (cocaine), in violation of New York State Penal Law Section 110-220.16(1). Id. at 7. He was sentenced to a 1-year term of incarceration, id. at 12, and was released from state custody after serving seven months. Item 1, ¶ 15.
On August 14, 2013--some ten years after his release from state custody-- petitioner was arrested at his residence in Liverpool, New York, by DHS officers
pursuant to an immigration warrant of arrest, and was transported to the BFDF. See Item 6-2, p. 12-13. He was served with a Notice to Appear (" NTA" ) charging him with being removable from the United States pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (" INA" ) (8 U.S.C. § 1227(a)(2)(a)(iii)), as an alien who has been convicted of a aggravated felony as defined in INA § 101(a)(43)(U) (8 U.S.C. § 1101(a)(43)(U)), an attempt or conspiracy to commit an offense relating to the illicit trafficking in a controlled substance, as defined in INA § 101(a)(43)(B) (8 U.S.C. § 1101(a)(43)(B)). Id. at 7-9.
On August 28, 2013, petitioner was served with Additional Charges of Inadmissibility/Deportability which charged him with being removable 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 5-6.
On October 7, 2013, Immigration Judge (" IJ" ) Steven J. Connelly denied petitioner's request for a change in custody status and determined that petitioner was subject to mandatory detention pursuant to the provisions of INA § 236(c) (8 U.S.C. § 1226(c)). Id. at 4.
On November 12, 2013, IJ Connelly denied petitioner's requests for further relief and ordered him removed from the United States to Jamaica. Id. at 3. On December 16, 2013, petitioner filed with the Board of Immigration Appeals (" BIA" ) an appeal from the IJ's order of removal. Id. at 2. According to DHS records submitted with the answer to the present petition, the appeal remains pending before the BIA. See Item 6-1, ¶ 11. Petitioner is currently detained at the BFDF pending determination of his appeal and completion of immigration removal proceedings. Id. at ¶ 12.
Meanwhile, on October 17, 2013, petitioner filed this action for habeas corpus relief on the ground that his continued detention in DHS custody since August 14, 2013, without an individualized bond hearing, violates his right to due process under ...