United States District Court, W.D. New York
Petitioner: Jevon Larry Richard Billinghurst, pro se
Respondent: Gail Y. Mitchell, Esq.
DECISION AND ORDER
CHARLES J. SIRAGUSA UNITED STATES DISTRICT JUDGE.
a lawful permanent resident of the United States, seeks a
writ of habeas corpus pursuant to 28 U.S.C. § 2241
releasing him from immigration detention pending removal to
Saint Vincent and Grenadines. He has been in custody since
September 12, 2014, and was ordered removed on February 5,
2015. On December 16, 2016, the Second Circuit stayed
Petitioner's constitutional challenge to the removal
order pending the Supreme Court's decision in Dimaya
v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert.
granted, No. 15-1498, 137 S.Ct. 31 (Sept. 29, 2016).
Billinghurst v. Lynch, No. 15-1985 (2d Cir. Dec. 16,
2016). The stay is in place until at least thirty days
following the decision in Di-maya.
argues that Petitioner's detention by the United States
Department of Homeland Security, Immigration and Customs
Enforcement (“DHS”) is permitted pursuant to the
Immigration and Nationality Act § 236 (8 U.S.C. §
1226),  and because the Second Circuit has stayed
his challenge, the removal period is extended pursuant to INA
§ 241 (8 U.S.C. § 1231), which reads in pertinent
part as follows:
Except as otherwise provided in this section, when an alien
is ordered removed, the Attorney General shall remove the
alien from the United States within a period of 90 days (in
this section referred to as the “removal
(ii) If the removal order is judicially reviewed and if a
court orders a stay of the removal of the alien, the date of
the court's final order.
U.S.C. § 1231(a)(1)(A) and (B)(ii) (2006). Petitioner
challenges his detention as unreasonable, citing in support
the Third Circuit decision in Patel v. Zemski, 273
F.3d 299 (3d Cir. 2001). However, that decision was abrogated
by the U.S. Supreme Court's decision in Demore v.
Kim, 538 U.S. 510, 516 (2003). In Demore, the
Supreme Court wrote that, “[s]ection 1226(c) mandates
detention during removal proceedings for a limited class of
deportable aliens-including those convicted of an aggravated
felony. Congress adopted this provision against a backdrop of
wholesale failure by the INS to deal with increasing rates of
criminal activity by aliens.… Detention during removal
proceedings is a constitutionally permissible part of that
process.” Demore, 538 U.S. at 517-18 &
also cites Zadvydas v. Davis, 533 U.S. 678 (2001),
however that case is distinguishable. In Zadvydas,
the alien detained was one for whom removal was “no
longer practically attainable.” Id. at 690.
Here, by contrast, if the Second Circuit issues a decision
upholding Petitioner's removal, then the 90-day period
for obtaining a travel permit will commence. Moreover,
Petitioner's detention is pursuant to § 1226
(detention pending decision to remove), not, as was the case
in Zadvydas, § 1231 (detention when ordered
removed). Therefore, the Court finds no reason to issue the
also challenges the basis for his removal. This Court is
without jurisdiction to address the merits of the removal
decision. Jurisdiction for that challenge lies exclusively
with the Second Circuit. Hurley v. Immigration &
Customs Enf't, No. CIVA 07-608, 2007 WL 1068478, at
*1 (W.D. La. Apr. 4, 2007) (“Pursuant to 8 U.S.C.
§ 1252(f)(2) and 1252(g), as amended by the REAL ID Act
of 2005, which governs judicial review of orders of removal,
a district court lacks jurisdiction to prevent the execution
of removal orders.”). See also, 8 U.S.C.
§ 1252(a)(2)(C) (“no court shall have jurisdiction
to review any final order of removal against an alien who is
removable by reason of having committed” certain
enumerated criminal offenses).
also asks for an Order preventing DHS from moving him to
another detention facility (he is currently housed in
Batavia, New York). Congress has given the Attorney General
discretion to choose “appropriate places of detention
for aliens detained pending removal or a decision on
removal.” 8 U.S.C. § 1231(g)(1). “[A]
district court has no jurisdiction to restrain the Attorney
General's power to transfer aliens to appropriate
facilities….” Tuong Huan Van Dinh v.
Reno, 197 F.3d 427, 433 (10th Cir. 1999). This Court
will not enjoin the Attorney General from exercising the
discretion available to him pursuant to § 1231.
See 8 U.S.C. § 1252(a)(2)(B)(ii) (section
“provides that no court has jurisdiction to review
any decision or action the Attorney General has
discretion to make ‘under this subchapter'”
which includes § 1231.).
it is hereby
that the petition seeking a writ of habeas corpus is denied;
and it is further
that Petitioner's request for an Order preventing the
Attorney General from moving him to another location during