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Billinghurst v. Tryon

United States District Court, W.D. New York

April 12, 2017

TODD L. TRYON, ICE Assistant Field Officer, [1] Respondent.

          For Petitioner: Jevon Larry Richard Billinghurst, pro se

          For Respondent: Gail Y. Mitchell, Esq.



         Petitioner, 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.[2] 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.[3]

         Respondent 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), [4] 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 peri-od”)….
(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.

         8 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 & 531.

         Petitioner 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 writ.

         Petitioner 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).

         Petitioner 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.).

         Accordingly, it is hereby

         ORDERED, that the petition seeking a writ of habeas corpus is denied; and it is further

         ORDERED, that Petitioner's request for an Order preventing the Attorney General from moving him to another location during ...

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