United States District Court, W.D. New York
JOHN T. CURTIN, District Judge.
Petitioner Kuan Jiang, 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 January 28, 2015 (Item 2), respondent 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 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 the People's Republic of China, was admitted to the United States at Anchorage, Alaska, on or about September 25, 1998, as a lawful permanent resident. See Item 4-2 (Exh. A, attached to Declaration of DHS Deportation Officer Juanita Payan, Item 4-1), pp. 2, 25. On February 25, 2008, petitioner filed with U.S. Citizenship and Immigration Services ("USCIS") an Application for Naturalization (Form N-400) which was denied by USCIS on March 13, 2009. Id. at 2.
Petitioner has been convicted of the following criminal offenses while a resident of the United States:
a. On or about January 27, 2009, petitioner was convicted, in Queens County, New York Criminal Court, of Criminal Possession of a Controlled Substance in the 7th Degree, to wit: heroin, in violation of New York State Penal Law Section 220.03. He was granted a conditional discharge.
b. On or about March 16, 2011, petitioner was convicted, in the Supreme Court of the State of New York, County of New York, of Robbery in the 2nd Degree: displays what appears to be a firearm, in violation of New York State Penal Law Section 160.10(2)(b). He was sentenced to a 42 month term of incarceration.
Id. at 2, 25.
On February 28, 2012, petitioner was encountered at the Mid-State Correctional Facility in Marcy, New York, by officials of the DHS Criminal Alien Program. Id. at 2, 26-27. Upon verification of petitioner's immigration status, an immigration detainer was lodged against him at the correctional facility. Id. at 28.
Petitioner was placed in immigration removal proceedings by a Notice to Appear ("NTA"), served on March 21, 2012, which charged him with being subject to removal from the United States, pursuant to Immigration and Nationality Act ("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; pursuant to INA § 237(a)(2)(A)(iii) (8 U.S.C. § 1227(a)(2)(A)(iii)), as an alien who has been convicted of an aggravated felony crime as defined in INA § 101(a)(43)(F) (8 U.S.C. § 1101(a)(43)(F)), a crime of violence; and pursuant to INA § 237(a)(2)(A)(iii) (8 U.S.C. § 1227(a)(2)(A)(iii)), as an alien who has been convicted of an aggravated felony crime as defined in INA § 101(a)(43)(G) (8 U.S.C. § 1101(a)(43)(G)), a law relating to a theft offense. Id. at 23-25.
On August 21, 2012, Immigration Judge ("IJ") Roger F. Sagerman ordered petitioner removed from the United States to the People's Republic of China. Id. at 31-32. Petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), and on December 5, 2012, the BIA dismissed the appeal. Id. at 3, 29-30.
On May 20, 2014, petitioner was taken into DHS custody upon his release from the custody of the New York State Department of Corrections and ...