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Thompson v. Lynch

United States District Court, W.D. New York

January 24, 2017

NYRAN D. THOMPSON, A# 037-461-359, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States of America, et al., Respondents.

          DECISION AND ORDER

          CHARLES J. SIRAGUSA United States District Judge

         INTRODUCTION

         In this pro se petition filed pursuant to 28 U.S.C. § 2241, Nyran D. Thompson (“Thompson” or “Petitioner”) argues, inter alia, that his continued detention in Respondents' custody is unlawful, based on the Supreme Court's decision in Zadvydas v. I.N .S., 533 U.S. 678, 121 S.Ct. 2491 (2001). Thompson's application for a writ of habeas corpus is denied.

         BACKGROUND

         Thompson, born in 1976, is a native and citizen of Jamaica, who has resided in the United States since 1981. After being convicted of various controlled substance offenses, the Department of Homeland Security (“DHS”) ordered that Thompson be removed from the United States. Thompson is currently appealing his final order of removal to the U.S. Court of Appeals for the Second Circuit. The Second Circuit has stayed Thompson's removal pending the outcome of his appeal; otherwise, there is no apparent impediment to his removal to Jamaica. While awaiting the outcome of his appeal, Thompson remains in DHS custody at the Federal Detention Facility in Batavia, New York.

         More specifically, the facts underlying Thompson's continued detention are set forth in an affidavit from DHS Deportation Officer Juanita Payan (“Payan”), as follows, in pertinent part:

         Thompson is a native and citizen of Jamaica, who was admitted to the United States at New York, New York, on about October 16, 1981, as a lawful permanent resident.

         Thompson has been convicted of criminal offenses in the United States as follows:

a. On or about July 11, 1997, Thompson was convicted in the Binghamton, New York City Court, of Criminal Trespass in the 2nd Degree in violation of New York State Penal Law Section 140.15. For this offense, he was granted a conditional discharge.
b. On or about May 4, 2001, Thompson was convicted in the Chemung County Court, State of New York, of Resisting Arrest in violation of New York State Penal Law Section 205.30, and Reckless Driving, in violation of New York State Vehicle and Traffic Law Section 1212. For this offenses, he was sentenced to a term of incarceration of one (1) year.
c. On or about July 17, 2001, Thompson was convicted in the Elmira, New York City Court, of Resisting Arrest in violation of New York State Penal Law Section 205.30. For this offense, he was sentenced to a 60 day term of incarceration.
d. On or about December 4, 2007, Thompson was convicted in the Broome County Court, State of New York, of Criminal Possession of a Weapon in the 2nd Degree, to wit: a firearm in violation of New York State Penal Law Section 265.03(3). For this offense, he was sentenced to a 42 month term of incarceration.
On May 1, 2007, Thompson was encountered by officers of the DHS Criminal Alien Program while he was incarcerated at the Monroe County Jail, Rochester, New York.
On May 24, 2010, Thompson filed with U.S. Citizenship and Immigration Services (“USCIS”), an Application for Certificate of Citizenship (Form N-600). Exhibit A, p. 3. On June 26, 2015, USCIS denied Thompson's N-600 application.
Thompson was placed in immigration removal proceedings by a Notice to Appear, dated June 11, 2010, which charged him pursuant to Immigration and Nationality Act (“INA”) § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C), with being subject to removal from the United States as an alien who has been convicted of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, in violation of any law, any weapon, part, or accessory which is a firearm or destructive device.
On June 15, 2010, Thompson was received into DHS custody upon completion of his sentence with the New York State Department of Corrections and Community Supervision.
On October 20, 2010, an immigration judge (“IJ”) granted Thompson cancellation of removal under INA § 240A(a), 8 U.S.C. § 1229b(a), and terminated the immigration proceedings. Thompson was subsequently released from DHS custody.
[Subsequently, ] Thompson [was] convicted of additional criminal offenses in the United States as follows:
a. On or about April 26, 2013, Thompson was convicted in the Binghamton, New York City Court, of Resisting Arrest in violation of New York State Penal Law Section 205.30. For this offense, he was sentenced to a one (1) year term of incarceration.
b. On or about May 7, 2014, Thompson was convicted in the Court of Common Pleas of Monroe County, Pennsylvania, of Manufacture, Delivery, or Possession with Intent to Manufacture or Deliver Cocaine in violation of Title 35, Section 780-113(A30) of the Pennsylvania Criminal Code. For this offense, he was sentenced to a minimum of 11 months, 15 days, up to a maximum of one (1) year, 11 months incarceration.
On April 21, 2015, Thompson was encountered by officers of the DHS Criminal Alien Program while he was incarcerated at the Monroe County Jail, Rochester, New York. Thompson was taken into DHS custody and served with a NTA which charged him, pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), with being subject to removal from the United States as an alien who has been convicted of a controlled substance offense and pursuant to INA § 237(a)(2)(B)(iii), 8 U.S.C. 1227(a)(2)(B)(iii), as an alien who has been convicted of an aggravated felony as defined in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), an offense relating to the illicit trafficking in a controlled substance.
On October 13, 2015, an IJ ordered Thompson removed from the United States to Jamaica. Thompson appealed the IJ's decision to the Board of Immigration Appeals.
On December 30, 2015, an IJ conducted a bond hearing in Thompson's case pursuant to United States v. Lora, 804 F.3d 601 (2d Cir. 2015). On February 16, 2016, the IJ denied Thompson's request to be released on ...

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