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Islam v. Philips

United States District Court, W.D. New York

April 27, 2015

MOHAMMED ISLAM, A77-318-159, Petitioner,
v.
MICHAEL PHILIPS, Field Office Director for United States Immigration and Customs Enforcement U.S. Department of Homeland Security, TODD TRYON, Assistant Field Office Director Buffalo Federal Detention Facility, ALEJANDRO MAYORKAS, Deputy Secretary, U.S. Immigration and Customs Enforcement U.S. Department of Homeland Security, JEH JOHNSON, Secretary U.S. Department of Homeland Security, and ERIC H. HOLDER, Jr., Attorney General U.S. Department of Justice, Respondents.

JOHN T. CURTIN, District Judge.

INTRODUCTION

Petitioner Mohammed Islam, an alien under a final immigration order of removal from the United States, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking release from detention in the custody of the United States Department of Homeland Security, Immigration and Customs Enforcement (collectively, "DHS"), pending his removal. See Item 1. As directed by this court's order entered December 3, 2014 (Item 2), respondent[1] has submitted an answer and return (Item 4), along with an accompanying memorandum of law (Item 5), in opposition to the petition. Despite ample opportunity to do so, petitioner (who is represented by counsel) has not filed a reply.

For the reasons that follow, the petition is denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

DHS records on file with the court show that petitioner, a native and citizen of Bangladesh, entered the United States at Los Angeles, California, on October 20, 2000, upon presentation of a counterfeit alien registration number as proof of lawful permanent resident status. See Item 4-2 (Exh. A, attached to Declaration of DHS Deportation Officer Juanita Payan, Item 4-1), pp. 10, 18. He was placed in immigration removal proceedings by a Notice to Appear ("NTA") dated December 4, 2000, charging him with being subject to removal from the United States pursuant to Section 212(a)(6)(C)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(C)(i), as an alien who by fraud or willfully misrepresenting a material fact sought to procure entry into the United States, and pursuant to INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant who at the time of application for admission was not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document alien required by the INA. Item 4-2, pp. 18-19.

On June 23, 2003, an immigration judge ("IJ") denied petitioner's applications for relief and ordered him removed from the United States to Bangladesh. Id. at 17. Petitioner appealed the IJ's decision, and on August 25, 2004, the Board of Immigration Appeals ("BIA") dismissed the appeal. Id. at 15-16. According to DHS records, petitioner was removed from the United States on May 20, 2006, pursuant to the IJ's order. Id. at 3.

On October 20, 2013, petitioner was encountered in the United States near Hidalgo, Texas, by United States Border Patrol officers. Id. at 22. After verification of his immigration status, petitioner was served with a Notice of Intent/Decision to Reinstate Prior Order (Form I-871), and he was placed in DHS custody pending removal pursuant to the IJ's reinstated order. Id. at 3. DHS records show that petitioner asserted fear of persecution or torture by a political party if returned to Bangladesh, and he was referred to an asylum officer with the United States Citizenship and Immigration Services ("USCIS") for a "reasonable fear determination" pursuant to the procedures set forth at 8 C.F.R. § 208.31. See Item 4-1, ¶ 11; Item 4-2, p. 22.

On October 30, 2013, DHS served petitioner with a formal Warning for Failure to Depart (Form I-229(a)), along with an instruction sheet listing actions that petitioner was required to complete within 30 days to assist in obtaining a travel document for his removal from the United States. Item 4-2, pp. 13-14. The warning form advised petitioner, among other things, of penalties under INA § 243 (8 U.S.C. § 1253) for conniving or conspiring to prevent or hamper his departure from the United States, and also advised him that, pursuant to INA § 241(a)(1)(C) (8 U.S.C. § 1231(a)(1)(C)), failure to comply or provide sufficient evidence of his inability to comply may result in the extension of the removal period and subject him to further detention. Id.

In January 2014, DHS conducted a review of petitioner's custody status in accordance with immigration regulations ( see 8 C.F.R. § 241.4), and on January 15, 2014, DHS notified petitioner that, based upon the totality of available information, it was determined that his detention would continue because he would pose a significant risk of flight if he were to be released from custody. Item 4-2, p. 11. Subsequent custody status reviews were conducted in April, August, and November 2014, with similar results. Id. at 4-9.

On December 10, 2014, an asylum officer issued a negative finding with respect to petitioner's claim of reasonable fear of persecution in his country of nationality. Id. at 23. As indicated on the Record of Negative Reasonable Fear Finding (Form I-898), petitioner did not request IJ review of the asylum officer's determination. Id.

On January 5, 2015, the DHS officer assigned to petitioner's removal case reported that a request for a travel document for petitioner had been submitted to the Consulate for Bangladesh, and was pending. Item 4-1, ¶ 19.

Meanwhile, petitioner filed this action on November 3, 2014, seeking habeas corpus relief pursuant to 28 U.S.C. § 2241 on the ground that his continued detention in DHS custody without a bond hearing is based upon an unlawful interpretation of the immigration laws, and violates his right to due process. See Item 1. Upon full consideration of the matters ...


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