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Case 1:13-cv-00466-JTC Document 6 Filed 09/19/13 Page 1 of 14

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LUIS JOSE ALMONTE, A-91-035-364,

Petitioner,

-v-

13-CV-466-JTC

ERIC H. HOLDER,
Attorney General of the United States;

MICHAEL PHILIPS,
Field Office Director of Detention and Removal,
Buffalo Field Office, Bureau of Immigration and
Customs Enforcement;

Department of Homeland Security; and

MARTIN HERON,
Facility Director, Buffalo Federal Detention Facility,

Respondents.

INTRODUCTION

Petitioner Luis Jose Almonte, an alien in the custody of the United States

Department of Homeland Security, Immigration and Customs Enforcement (collectively,

“DHS”), has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241 seeking release from detention at the Buffalo Federal Detention Facility in Batavia,

New York, pending the execution of a final immigration order of removal issued against

him. Item 1. As directed by this court’s order entered May 15, 2013 (Item 2), respondent1

1

The only proper respondent in this proceeding is Todd Tryon, Assistant Field Office Director,
Immigration and Customs Enforcement, Buffalo, New York Office, and Director of the Buffalo Federal
Detention Facility, as he is “the person who has custody over [the petitioner].” 28 U.S.C. § 2242; see also
§ 2243 (“The writ, or order to show cause shall be directed to the person having custody of the person
detained.”); Rumsfeld v. Padilla, 542 U.S. 426, 434–35 (2004).

Case 1:13-cv-00466-JTC Document 6 Filed 09/19/13 Page 2 of 14

has submitted an answer and return (Item 4), along with an accompanying memorandum

of law (Item 5), in opposition to the petition. For the reasons that follow, the petition is

denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petitioner, a native and citizen of the Dominican Republic, entered the United States

at an unknown place and time, without being admitted or paroled after inspection by an

immigration officer. In April 1989, the Immigration and Naturalization Service (“INS”)

granted petitioner’s application for status as a temporary resident under Section 245(A) of

the Immigration and Nationality Act (“INA”), and on October 15, 1991, INS granted his

application to adjust his status from temporary to permanent resident. See Item 4-1

(Declaration of DHS Deportation Officer Juanita Payan), ¶¶ 5-7.

DHS records reflect that, on February 11, 2009, petitioner was convicted in New

York State Supreme Court, New York County, of assault in the second degree: intent to

cause physical injury with a deadly weapon, in violation of New York Penal Law

§ 120.05(2). He was sentenced to a 36-month prison term and 18 months’ post-release

supervision, and was placed in the custody of the New York State Department of

Corrections and Community Supervision (“DOCCS”) at the Ulster Correctional Facility in

Napanoch, New York. Id. at ¶¶ 8-9.

On March 25, 2009, while incarcerated at the Ulster Correctional Facility, petitioner

was encountered by DHS officers assigned to the Criminal Alien Program, and was

identified as an alien amenable to removal from the United States. He was thereafter

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received into DHS custody on September 2, 2011, upon his release from the custody of

DOCCS. Id. at ¶¶ 9-10.

On September 6, 2011, petitioner was served with a Notice to Appear (“NTA”)

before an Immigration Judge (“IJ”) to show cause why he should not be removed from the

United States pursuant to INA § 237(a)(2)(A)(iii) (8 U.S.C. § 1227(a)(2)(A)(iii)), as being an

alien convicted of an aggravated felony relating to crimes of violence as defined in INA

§ 101(a)(43)(F). Id. at ¶ 11; see also Item 4-2 (Ex. A to Payan Decl.), pp.12-14. On

February 14, 2012, IJ Steven J. Connelly ordered petitioner removed from the United

States to the Dominican Republic. Item 4-1 ¶ 12. This order became final on June 14,

2012, when the Board of Immigration Appeals (“BIA”) dismissed petitioner’s appeal. Item

4-1, ¶ 14; see 8 C.F.R. § 1241.1(a) (IJ’s order of removal becomes final upon BIA’s

dismissal of appeal).

Immediately following the BIA’s dismissal of petitioner’s appeal, DHS took steps to

execute the final order of removal. For example, on June 15, 2012, DHS sent a

presentation packet to the Consulate General of the Dominican Republic (the “Consulate”)

in New York City, requesting that a travel document be issued to facilitate petitioner’s

removal. Item 4-1, ¶ 15. On June 18, 2012, petitioner was interviewed by telephone by

a Consulate representative. Id. at ¶ 16. DHS went so far as to make travel arrangements

for petitioner to be removed from the United States on a DHS charter flight scheduled for

June 28, 2012. Id. at ¶ 15.

On June 26, 2012, petitioner filed in the United States Court of Appeals for the

Second Circuit a petition for review of the BIA’s dismissal order, along with a motion for

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stay of removal. See Item 4-2 pp. 21-23 (Docket Sheet, Almonte v. Holder, 2d Cir. Docket

No. 12-2622). According to the Second Circuit’s Public Access to Court Electronic

Records (“PACER”) system, the petition for review and motion for stay remain pending as

of the date of entry of this decision and order.

On July 4, 2012, DHS served petitioner with a formal Warning for Failure to Depart

(Form I-229(a)), along with instructions for required action within 30 days to assist in the

procurement of travel documents. Item 4-2, pp. 9-11. In September 2012, in accordance

with immigration regulations, DHS conducted a 90-day review of petitioner’s custody status

and determined that, based on a totality of the information available in his file, petitioner’s

detention would continue because he would be a threat to the community if he were to be

released from custody. Id. at 6-8. Further custody reviews were conducted by DHS

Headquarters Post Order Custody Review Unit (“HQPOCRU”) in December 2012, March

2013, and June 2013. Item 4-1, ¶¶ 22-24. Following each of these reviews, DHS notified

petitioner that his detention would continue. Id.; see also Item 4-2, pp. 2-5.

Petitioner filed this action on May 6, 2013, seeking habeas corpus relief pursuant

to 28 U.S.C. § 2241 on the ground that his continued detention in DHS custody since June

14, 2012, when the IJ’s order became final, is unlawful since it has exceeded the

“presumptively reasonable” six-month period established under the due process standards

set forth by the United States Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001).

Upon full consideration of the matters set forth in the submissions on file, and for the

reasons that follow, the petition is denied.

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DISCUSSION

Petitioner challenges his continued detention by way of habeas corpus review under

28 U.S.C. § 2241, which “authorizes a district court to grant a writ of habeas corpus

whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of the

United States.’ ” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C.

§ 2241(c)(3)); see also Zadvydas, 533 U.S. at 687 (petition under § 2241 is the basic

method for statutory and constitutional challenges to detention following order of removal).

Matters pertaining to the detention of aliens pending the completion of immigration

removal proceedings and pending removal following the entry of a final order of removal

are governed by two separate provisions of the INA–respectively, INA § 236, which

authorizes the arrest and detention of an alien on warrant pending a decision on whether

the alien is to be removed from the United States, and INA § 241, which authorizes

detention of aliens after the issuance of a final removal order. In this case, petitioner’s

detention at the time he filed his habeas petition was pursuant to INA § 241(a), which

requires the Attorney General to accomplish an alien’s removal from the United States

within a period of ninety days (the “removal period”), commencing on the latest of the

following dates:

(i) The date the order of removal becomes administratively
final.
(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.
(iii) If the alien is detained or confined (except under an
immigration process), the date the alien is released from
detention or confinement.

8 U.S.C. § 1231(a)(1)(B).

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Detention during the ninety-day removal period is mandatory. See INA § 241(a)(2)

(“During the removal period, the Attorney General shall detain the alien.”). The statute also

authorizes the Attorney General to continue detention of certain criminal aliens–i.e., aliens

ordered removed due to conviction of an enumerated crime–beyond the expiration of the

ninety-day removal period. See INA § 241(a)(6).2

In Zadvydas, the Supreme Court was presented with the challenge of reconciling

this apparent authorization of indefinite detention with the Fifth Amendment’s prohibition

against depriving a person of their liberty without due process. The Court determined that

INA § 241(a) authorizes detention after entry of an administratively final order of

deportation or removal for a period that is “reasonably necessary” to accomplish the alien’s

removal from the United States. Zadvydas, 533 U.S. at 699-700. Recognizing the

practical necessity of setting a “presumptively reasonable” time within which to secure

removal, the court adopted a period of six months “for the sake of uniform administration

in the federal courts ….” Id. at 701.

After this 6-month period, once the alien provides good reason to believe that
there is no significant likelihood of removal in the reasonably foreseeable
future, the Government must respond with evidence sufficient to rebut that
showing. And for detention to remain reasonable, as the period of prior
postremoval confinement grows, what counts as the “reasonably foreseeable
future” conversely would have to shrink. This 6-month presumption, of
course, does not mean that every alien not removed must be released after

2

INA § 241(a)(6) provides in full as follows:

An alien ordered removed who is inadmissible under section 1182 of this title, removable
under section 1227(a)(1)(C), 1227(a)(2),or 1227(a)(4) of this title or who has been
determined by the Attorney General to be a risk to the community or unlikely to comply
with the order of removal, may be detained beyond the removal period and, if released,
shall be subject to the terms of supervision in paragraph (3).

8 U.S.C. § 1231(a)(6).

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six months. To the contrary, an alien may be held in confinement until it has
been determined that there is no significant likelihood of removal in the
reasonably foreseeable future.

Id.

To comply with the Supreme Court’s ruling in Zadvydas, the Attorney General has

promulgated regulations providing for review of the custody status of aliens who have been

detained for more than six months after the issuance of a final order of removal. Under

these regulations, a detainee who has been in post-removal-order custody for more than

six months may submit a written request for release to DHS Headquarters Post-order

Detention Unit (“HQPDU”) setting forth “the basis for the alien’s belief that there is no

significant likelihood that the alien will be removed in the reasonably foreseeable future.”

8 C.F.R. § 241.13(d)(1). The written request must include “information sufficient to

establish his or her compliance with the obligation to effect his or her removal and to

cooperate in the process of obtaining necessary travel documents.” 8 C.F.R.

§ 241.13(d)(2).

In reviewing the request for release, the agency is required to consider “all the facts

of the case including, but not limited to,” the following:

[T]he history of the alien's efforts to comply with the order of removal, the
history of the Service's efforts to remove aliens to the country in question or
to third countries, including the ongoing nature of the Service's efforts to
remove this alien and the alien's assistance with those efforts, the
reasonably foreseeable results of those efforts, and the views of the
Department of State regarding the prospects for removal of aliens to the
country or countries in question. Where the Service is continuing its efforts
to remove the alien, there is no presumptive period of time within which the
alien's removal must be accomplished, but the prospects for the timeliness
of removal must be reasonable under the circumstances.

8 C.F.R. § 241.13(f).

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If the agency finds that the alien has met the burden of demonstrating good reason

to believe there is no significant likelihood of removal in the reasonably foreseeable future,

and that there are no special circumstances justifying continued detention, then it must

order the detainee released. 8 C.F.R. § 241.13(g)(1). However, the agency may impose

certain conditions of release on the alien, such as requiring a bond, attendance in a

rehabilitative program, or submission to a medical or psychiatric examination. See 8

C.F.R. §§ 241.5(b), 241.13(h)(1); see also Zadvydas, 533 U.S. at 695 (“[W]e nowhere deny

the right of Congress to remove aliens, to subject them to supervision with conditions when

released from detention, or to incarcerate them where appropriate for violations of those

conditions.”).

As set forth above, in this case petitioner was placed into DHS custody on

September 2, 2011, upon his release from DOCCS. This detention was authorized by INA

§ 236 (pre-final removal order detention), and continued until June 14, 2012, when the

removal order became final upon the BIA’s dismissal of petitioner’s appeal from the IJ’s

decision. After the removal order became final, petitioner’s detention was authorized under

INA § 241(a), and the 90-day period for removal began. DHS promptly took steps to

secure travel documents for petitioner’s removal to the Dominican Republic. Then, on

June 26, 2012, petitioner filed his petition in the Second Circuit for review of the BIA’s

dismissal of his appeal from the removal order, along with a motion for stay of removal.

Numerous decisions by the federal courts within the Second Circuit have held that

the filing of a petition for circuit court review of the final order of removal, accompanied by

a motion for stay of removal, triggers the application of a “forbearance policy” recognized

by agreement between DHS and the Second Circuit under which DHS has agreed not to

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effectuate the removal of an alien while he or she has a petition for review pending before

the circuit court. See, e.g., Persaud v. Holder, 2011 WL 5326465, at *1 (W.D.N.Y. Nov.

3, 2011) (filing of petition for circuit court review of final order of removal along with motion

for stay of removal triggers “forbearance policy”); Luna-Aponte v. Holder, 743 F. Supp. 2d

189, 197 (W.D.N.Y. 2010) (even though circuit court had not “formally” ruled on motion to

stay accompanying petition for review of BIA’s dismissal of appeal from removal order,

forbearance policy is “the equivalent of a court-ordered stay of removal”); Shehnaz v.

Ashcroft, 2004 WL 2378371, at *2 (S.D.N.Y. Oct. 25, 2004) (where circuit court had not yet

ruled on alien's requests to stay removal and for review of BIA's order, a stay of removal

was in effect pursuant to Second Circuit forbearance policy); cf. Abimbola v. Ridge, 181

F. App’x 97, 99 (2d Cir. 2006) (“consistent pattern” of filing petition for circuit court review

accompanied by motions to stay removal triggered application of Second Circuit's

forbearance policy; petitioner’s “self-inflicted wound should not establish grounds for [his]

Zadvydas claim”) (citing Doherty v. Thornburgh, 943 F.2d 204, 205 (2d Cir. 1991)

(petitioner cannot rely on delays resulting from litigation strategy to claim that prolonged

detention violates substantive due process).

Pursuant to this policy, the removal period which began on June 14, 2012, was

“effectively stayed” as of June 26, 2012, when petitioner filed his petition for review and

motion for stay of removal with the Second Circuit. Luna-Aponte, 743 F. Supp. 2d at 190.

Therefore, DHS had slightly more than 12 days to obtain the travel documents necessary

for execution of the removal order prior to the filing of the petition for circuit court review

(during which time petitioner’s detention was mandatory, see INA § 241(a)(2)), and DHS

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cannot resume its efforts until the Second Circuit rules either on the petition itself or on the

pending motion for stay of removal.

Accordingly, because the detention challenged by the habeas petition in this action

has been prolonged by petitioner’s own pursuit of judicial review of the final order of

removal, the duration of his detention cannot be found to constitute a violation of his rights

under the due process clause of the Fifth Amendment. Doherty, 943 F.2d at 211 (refusing

to find eight-year detention unconstitutional where alien’s pursuit of judicial and

administrative review caused the delay in removal); Dor v. District Director, INS, 891 F.2d

997, 1002 (2d Cir. 1989) (same, but with four year detention); see also Khaleque v.

Department of Homeland Sec., 2009 WL 81318, at *3 (W.D.N.Y. Jan. 9, 2009) (denying

alien’s habeas petition upon finding that alien “elected to file a petition for review and a

motion for a stay of removal” which “acted to prevent his removal until the Second Circuit

issued its mandate”).

Alternatively, considering petitioner’s habeas challenge under the due process

standards set forth in Zadvydas, petitioner must first “provide[ ] good reason to believe that

there is no significant likelihood of removal in the reasonably foreseeable future.”

Zadvydas, 533 U.S. at 701. Only if he makes this initial showing does the burden shift

back to the government, which “must respond with evidence sufficient to rebut that

showing.” Id.; see also Wang, 320 F.3d at 146 (“reasonable foreseeability” test of

Zadvydas “articulates the outer bounds of the Government's ability to detain aliens (other

than those serving criminal sentences) without jeopardizing their due process rights”).

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Upon review of the submissions on the present petition, the court finds that

petitioner has failed to sustain his initial burden under Zadvydas. The petition sets forth

no factual basis to substantiate petitioner’s belief that there is no significant likelihood he

can be removed to the Dominican Republic in the reasonably foreseeable future. He

simply alleges that the Consulate “has not issued travel documents and there is no

certainty as to when, if ever, such papers will be issued.” Item 1, ¶ 15. However, as

discussed above, DHS records reflect that prompt steps were taken to secure travel

documents for petitioner upon notice that his order of removal had become final, and

indeed, the Consulate indicated to DHS that it was ready to proceed with the issuance of

travel documents as of July 9, 2012, had petitioner not sought review and stay of removal

in the Second Circuit. See Item 4-1, ¶¶ 17-18. Accordingly, the request for a travel

document remains pending with the Consulate, and there is nothing in the record before

the court to indicate that the Dominican authorities are inclined to deny the request once

petitioner’s pursuit of judicial review in the federal courts is resolved.

Additionally, statistical evidence submitted to the court reveals that, in recent years,

DHS has successfully repatriated a significant number of aliens to the Dominican Republic,

indicating no institutional barriers to petitioner’s removal. For example, DHS reports show

that, in fiscal year (“FY”) 2009, a total of 3,580 aliens were repatriated to the Dominican

Republic; in FY 2010, 3,373 aliens were repatriated to the Dominican Republic; and in FY

2011, 2,860 aliens were repatriated to the Dominican Republic. See DHS Yearbook of

Immigration Statistics, Table 41: http://www.dhs.gov/yearbook-immigration-statistics-2011-

3. These circumstances provide a reasonable basis for DHS’s expectation that the

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verification required for the issuance of a travel document by the Dominican government

can be accomplished within the reasonably foreseeable future following resolution of

petitioner’s pending request for review by the Second Circuit, after which time the

necessary travel arrangements may be made for petitioner’s release from custody and his

repatriation to the Dominican Republic.

Significantly, petitioner has provided no evidence to contradict this expectation, or

to otherwise establish compliance with the requirements of the DHS regulations described

above. Instead, petitioner relies solely on the fact that his detention has exceeded the

presumptively reasonable six-month period established in Zadvydas. See Item 1, ¶¶ 15,

27, 28. However, several cases decided within this district have found the habeas

petitioner’s assertion as to the unforeseeability of removal, supported only by the mere

passage of time, insufficient to meet the petitioner’s initial burden to demonstrate no

significant likelihood of removal under the Supreme Court’s holding in Zadvydas. See,

e.g., Khaleque, 2009 WL 81318, at *4 (petitioner failed to meet initial burden where the

only evidence relied upon was the fact that the Consulate had not responded positively to

the request for a travel document); Kassama v. Dep't of Homeland Sec., 553 F. Supp. 2d

301, 306-07 (W.D.N.Y. 2008) (petitioner failed to meet initial burden where there was no

evidentiary proof in admissible form to suggest that travel documents would not be issued);

Haidara v. Mule, 2008 WL 2483281, at *3 (W.D.N.Y. June 17, 2008) (petitioner failed to

meet initial burden where he “merely ma[de] the general assertion that he will not be

returned to [his country] in the foreseeable future”); Roberts v. Bureau of Immigration &

Customs Enforcement, 2007 WL 781925, at *2 (W.D.N.Y. Mar. 13, 2007) (petitioner who

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did not present evidence that his country would not provide travel documents did not meet

initial burden of proof); Singh v. Holmes, 2004 WL 2280366, at *5 (W.D.N.Y. Oct. 8, 2004)

(petitioner who “failed to submit anything demonstrating that there is no significant

likelihood of removal in the reasonably foreseeable future” did not meet initial burden of

proof); see also Juma v. Mukasey, 2009 WL 2191247, at *3 (S.D.N.Y. July 23, 2009)

(vague, conclusory and general claims that removal is not foreseeable, and that Embassy

will not issue travel document in foreseeable future, fails to meet initial burden).

Based on this authority, and upon full consideration of the record presented by way

of the parties’ submissions, the court finds that petitioner has failed to meet his initial

burden under Zadvydas to “provide[ ] good reason to believe that there is no significant

likelihood of removal in the reasonably foreseeable future,” Zadvydas, 533 U.S. at 701, and

that petitioner may not rely on the delay resulting from his request for circuit court review

of the final order of removal to claim that his prolonged detention violates substantive due

process. Accordingly, petitioner has failed to demonstrate that he is “in custody in violation

of the Constitution or laws or treaties of the United States” for the purposes of granting

habeas corpus relief under 28 U.S.C. § 2241, and his petition must be denied.

CONCLUSION

For the foregoing reasons, the petition is denied, and the case is dismissed. This

dismissal is without prejudice to file another petition should it subsequently appear that the

presumptively reasonable period of post-removal-order detention has elapsed, and that

removal is no longer reasonably foreseeable. See Andreenko v. Holder, 2012 WL

4210286, at *5 (W.D.N.Y. Sept. 18, 2012); Kassama, 553 F. Supp. 2d at 307.

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It is further ordered that certification pursuant to 28 U.S.C. § 1915(a)(3) be entered

stating that any appeal from this Judgment would not be taken in good faith and therefore

leave to appeal as a poor person should be denied. Coppedge v. United States, 369 U.S.

438 (1962).

The Clerk of the Court is directed to enter judgment in favor of respondent, and to

\s\ John T. Curtin

JOHN T. CURTIN

United States District Judge

close the case.

So ordered.



Dated: September 18, 2013
p:\pending\2013\13-466.2241.sept16.2013



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