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Vaskovska v. Holder

United States District Court, W.D. New York

September 17, 2014

KATERYNA VASKOVSKA, Petitioner,
v.
ERIC H. HOLDER, JR., Unites States Attorney General, MICHAEL T. PHILLIPS, Field Director for United States Immigration and Customs Enforcement at the Allegany County Jail, and all other persons exercising direct legal custody over Petitioner, JEB JOHNSON, Secretary of the Department of Homeland Security, Respondents.

INTRODUCTION

JOHN T. CURTIN, District Judge.

Petitioner Kateryna Vaskovksa, 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 Chautauqua County Jail in Mayville, New York ("CCJ"), pending completion of immigration removal proceedings. Item 1.[1] She has included in the petition a claim of inadequate medical care. As directed by this court's order entered April 28, 2014 (Item 3), respondent has submitted an answer and return (Item 6), along with an accompanying memorandum of law (Item 7) and a supplemental memorandum of law addressing the medical care issue (Item 11). Petitioner has filed a responsive memorandum of law (Item 15). For the reasons that follow, the petition is denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petitioner, a native and citizen of the Ukraine, was admitted to the United States at New York City on or about October 9, 2005 as a K-2 nonimmigrant with authorization to remain in the United States for a temporary period not to exceed January 7, 2006. See Item 6-1, Declaration of Juanita Payan ("Payan Decl."), ¶ 5. Petitioner remained in the United States beyond the authorized period. Id. She twice filed an application with U.S. Citizenship and Immigration Services ("USCIS") to adjust her status, and the applications were denied. Id., ¶¶ 6-7. On or about October 17, 2012, petitioner was convicted in the County Court of Warren County, State of New York, of Criminal Possession of a Controlled Substance in the 4th Degree, in violation of New York Penal Law Section 220.09-01, and was sentenced to a three year term of imprisonment. Payan Decl., ¶ 8.

On October 31, 2012, petitioner was encountered by an Immigration Enforcement Agent while she was incarcerated at the Bedford Hills Correctional Facility in Bedford Hills, New York. Payan Decl., ¶ 10. After her immigration status was verified, petitioner was served with a Notice to Appear ("NTA") charging her with being removable from the United States pursuant to section 237(a)(1)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(B), as an alien who has remained in the United States for a longer time than permitted, and pursuant to section 237(a)(2)(B)(I), 8 U.S.C. § 1227(a)(2)(B)(I), as an alien convicted of a controlled substance offense. Id.; Item 6-2 ("Exh. A"), pp. 7-9.

On June 11, 2013, petitioner was taken into DHS custody upon her release from the New York State Department of Corrections and Community Supervision and was detained at the Allegany County Jail in Belmont, New York. Payan Decl., ¶ 11. On June 26, 2013, 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. Payan Decl., ¶ 13; Exh. A, p. 5. On August 8, 2013, IJ Connelly denied petitioner's request for relief and ordered that she be removed from the United States to the Ukraine. Payan Decl., ¶ 14; Exh. A, p. 3. Petitioner filed an appeal of the IJ's order of removal with the Board of Immigration Appeals ("BIA"). Payan Decl., ¶ 15; Exh. A, p. 14. The appeal is pending. Petitioner is currently detained at the Chautauqua County Jail pending completion of immigration removal proceedings. Payan Decl., ¶ 17.

On April 12, 2014, petitioner filed this action for habeas corpus relief on the ground that her continued detention in DHS custody violates her right to due process under the Fifth Amendment to the United States Constitution. See Item 1.

DISCUSSION

Petitioner challenges her detention by way of habeas corpus review under 28 U.S.C. § 2241, which "authorizes a district court to grant a writ of habeas corpus whenever a petitioner is in custody in violation of the Constitution or laws or treaties of the United States.'" Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C. § 2241(c)(3)); see also Zadvydas v. Davis, 533 U.S. 678, 687 (2001) (petition under § 2241 is the basic method for statutory and constitutional challenges to detention following order of removal).

Matters pertaining to the detention of aliens pending the completion of immigration removal proceedings and pending removal following the entry of a final order of removal are governed by two separate provisions of the INA-respectively, section 236, which authorizes the arrest and detention of an alien on warrant pending a decision on whether the alien is to be removed from the United States, and section 241, which authorizes detention of aliens after the issuance of a final order of removal. In this case, petitioner's detention at the time she filed her habeas petition was pursuant to section 236, which provides in pertinent part:

(a) Arrest, detention, and release.
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.... Except as provided in subsection (c)... and pending such decision, the Attorney General-
(1) may continue to detain the arrested ...

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