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Nunez Pena v. Tryon

United States District Court, W.D. New York

August 18, 2014

DOMINGO SANTIAGO NUNEZ PENA, Petitioner,
v.
TODD L. TRYON, Buffalo Federal Detention Facility, Respondent.

JOHN T. CURTIN, District Judge.

INTRODUCTION

Petitioner Domingo Santiago Nunez Pena, an alien in the custody of the United States Department of Homeland Security, Immigration and Customs Enforcement (collectively, "DHS"), has filed this 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 April 28, 2014 (Item 5), respondent has submitted an answer and return (Item 7), along with an accompanying memorandum of law (Item 8), 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 the Dominican Republic, was admitted to the United States at New York City on or about August 10, 1966, as a lawful permanent resident. See Item 6-2 (Exh. A attached to Declaration of DHS Deportation Officer Juanita Payan (Item 7-1)), p. 8. During the time he has been living in the United States, petitioner has been convicted of the following criminal offenses:

a. On or about January 17, 1991, petitioner was convicted in New York State Supreme Court, Queens County, of Criminal Sale of a Controlled Substance in the 3rd Degree (heroin), in violation of N.Y. Penal Law § 220.39 (3 counts). For these offenses, he was sentenced to a 2 to 6 year term of imprisonment.
b. On or about May 8, 1997, petitioner was convicted in New York State Supreme Court, Queens County, of Criminal Possession of a Controlled Substance in the 7th Degree (cocaine), in violation of N.Y. Penal Law § 220.03. For this offense, he was granted a conditional discharge.
c. On or about August 22, 1999, petitioner was convicted in New York State Supreme Court, Queens County, of Criminal Possession of a Controlled Substance in the 7th Degree (cocaine), in violation of N.Y. Penal Law § 220.03. For this offense, he was sentenced to 7 days of imprisonment.
d. On or about June 29, 2011, petitioner was convicted in New York State Supreme Court, Bronx County, of Criminal Possession of a Controlled Substance in the 7th Degree (heroin), in violation of N.Y. Penal Law § 220.03 (2 counts). For these offenses, he was granted a conditional discharge.

Item 7-2, pp. 8, 11-12.

On April 17, 2013, petitioner was arrested by officers of the Albany, New York, Police Department and charged with Criminal Possession of a Controlled Substance in the 7th Degree, in violation of N.Y. Penal Law § 220.03, and Criminal Trespass in the 3rd Degree, in violation of N.Y. Penal Law § 140.10. Id. at 12. Pending disposition of these charges, petitioner was placed in a "Recovery Rehabilitation Therapeutic Program" in Bath, NY, from July 2013, until February 12, 2014. Id. at 14. Then, on February 20, 2014, while appearing in Albany, New York, City Court, petitioner was taken into custody by DHS officers and 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 an aggravated felony (defined in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), as an offense relating to the "illicit 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 4-9.

On April 9, 2014, Immigration Judge ("IJ") Steven J. Connelly denied petitioner's request for a change in custody status, and determined that petitioner was subject to detention in DHS custody pursuant to the provisions of INA § 236(c), pending a final determination of removability. Id. at 2-4. Petitioner is currently detained at the BFDF pending completion of immigration removal proceedings. See id. at 1. (Warrant of Arrest).

On April 17, 2014, petitioner filed this action for habeas corpus relief on the ground that his continued detention in DHS custody without an individualized bond hearing violates his right to due process under the Fifth ...


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