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Khemlal v. Shanahan

United States District Court, S.D. New York

October 8, 2014

CHRISTOPHER SHANAHAN, et al., Respondents.


ANDREW J. PECK, Magistrate Judge.

Petitioner Harischandra Khemlall seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 from his October 21, 2012 detention by the United States Department of Homeland Security ("DHS"), Bureau of Immigration and Customs Enforcement ("ICE"). (Dkt. No. 1: Pet. ¶¶1a, 2a.) Khemlall is detained pursuant to Section 241(a)(5) of the Immigration and Nationality Act ("INA") (codified at 8 U.S.C. § 1231), which reinstates a prior removal order when an alien illegally reenters the United States. (Pet. ¶ 5b.) Khemlall's petition asserts that his detention is not governed by 8 U.S.C. § 1231, but rather by 8 U.S.C. § 1226 (INA § 236), which provides for the detention of aliens whose removal proceedings are ongoing. (Pet. ¶ 6b.) Khemlall's petition also asserts that his detention violates due process, both because he has not yet received a custody determination under 8 U.S.C. § 1226, and because his removal from the United States is not reasonably foreseeable. (Pet. ¶¶ 2a, 9b.)

The parties have consented to my decision of this case pursuant to 28 U.S.C. § 636(c). (Dkt. No. 6: 8/13/14 Consent to Magistrate Judge Jurisdiction.) The Court heard oral argument on October 8, 2014. For the reasons set forth below, Khemlall's habeas petition is DENIED.[1]


A. Khemlall's First Illegal Entry And Removal Order

On September 21, 2000, Khemlall, a native and citizen of Guyana, arrived at Miami International Airport on a flight from Trinidad. (Dkt. No. 1: Pet. ¶¶ 4a, 5a; Pet. App. at 257.)[2] The Immigration and Naturalization Service ("INS") marked the Trinidadian passport Khemlall presented upon arrival in Miami as a "T/M Lookout" for further inspection. (Pet. App. at 257, 258.) Upon inspection, the INS officer determined that the passport did not belong to Khemlall and he was deemed inadmissible. (Pet. App. at 257, 258.) On October 3, 2000, INS issued an expedited removal order under INA § 235(b)(1) (codified at 8 U.S.C. 1225), and Khemlall was returned to Trinidad on October 4, 2000. (Pet. ¶ 5a; Pet. App. at 255.)

B. Khemlall's Second Illegal Entry And Current Removal Proceedings

Khemlall re-entered the United States at John F. Kennedy International Airport in New York City on May 1, 2002. (Dkt. No. 1: Pet. App. at 282.) On October 21, 2012, following an arrest, he was detained by ICE at the Bergen County Jail in Hackensack, New Jersey, pursuant to INA § 241(a)(5) (codified at 8 U.S.C. § 1231). (Pet. ¶¶ 1a, 5b; Pet. App. at 276.) On October 21, 2012, Khemlall's October 4, 2000 removal order was reinstated. (Pet. ¶ 5b; Pet. App. at 252.) ICE provided Khemlall with a Notice to Alien of File Custody Review on December 11, 2012, stating that his custody status would be reviewed on or about January 4, 2013. (Dkt. No. 8: Return Ex. A.) The notice details that Khemlall is detained in accordance with INA § 241 and that his prior order of removal became final on September 22, 2000. (Return Ex. A.)

Khemlall expressed a fear of returning to Guyana, and on December 13, 2012 he received a "Reasonable Fear" interview before an INS asylum officer, as required by 8 C.F.R. § 208.31. (Pet. ¶ 5c; Pet. App. at 260-63.) The purpose of the interview was to determine whether Khemlall should be referred to an Immigration Judge for withholding or deferral of removal. (Pet. App. at 260.) The asylum officer concluded that Khemlall's fear of returning to Guyana was sufficiently detailed, consistent and plausible to be credible, and issued a Reasonable Fear Determination on January 18, 2013 recommending referral to an immigration judge. (Pet. App. at 262-67.) On May 17, 2013, the Immigration Judge issued an order denying Khemlall's application for withholding. (Pet. ¶ 5c; Return Ex. B.) Subsequently, Khemlall appealed the decision to deny withholding to the Board of Immigration Appeals. (Pet. ¶¶ 5d-5e.) Khemlall's appeal was granted on November 20, 2013, and on remand a withholding-only hearing is scheduled to take place in Immigration Court on October 20, 2014. (Pet. ¶ 5e; Return Ex. C; see also Pet. ¶ 5f; Pet. App. at 282-306.)

In the meantime, ICE regularly reviewed Khemlall's custody status on April 25, 2013, July 22, 2013, October 28, 2013, April 28, 2014, and July 22, 2014; each time the ICE Headquarters Post Order Custody Review Unit determined that Khemlall should continue to be detained. (Return Exs. D-H; see Pet. ¶ 6a.)



Khemlall filed this habeas petition on July 11, 2014, when he was present in this District to attend a withholding-only proceeding before the Immigration Court. (Dkt. No. 1: Pet. ¶ 1a.) This Court has subject matter jurisdiction over Khemlall's habeas corpus petition pursuant to 28 U.S.C. § 2241. See Rumsfeld v. Padilla , 542 U.S. 426, 443, 124 S.Ct. 2711, 2722 (2004) ("jurisdiction lies in only one district: the district of confinement"); Guo v. Napolitano, 9 Civ. 3023, 2009 WL 2840400 at *5 (S.D.N.Y. Sept. 2, 2009) (jurisdiction over a habeas petition is established at the time the petition is filed). The government "concede[s] that in light of ...

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