Opinion

Ghirawoo v. Searls

Court
District Court, W.D. New York
Filed
Aug 29, 2024
Cited by
0 cases
Authority
More cited than 33.4%

“[The REAL ID Act, 119 Stat. 231, § 106(a) (May 11, 2005)] eliminates habeas jurisdiction over final orders of deportation, exclusion, and removal, providing instead for petitions of review... which circuit courts alone can consider.”

How later courts described this case

  • “[The REAL ID Act, 119 Stat. 231, § 106(a) (May 11, 2005)] eliminates habeas jurisdiction over final orders of deportation, exclusion, and removal, providing instead for petitions of review... which circuit courts alone can consider.”

Written by the judges who cited it.

The opinion

SAATES DISTRI

UNITED STATES DISTRICT COURT iS tee

WESTERN DISTRICT OF NEW YORK vA

AUG 2 9 2024

TS tag

yee se

JUNIOR HASTINGS MARK rep NS oS

GHIRAWOO,

Petitioner,

24-CV-217 (JLS)

Vi

JOSEPH E. FREDEN, Deputy Field

Office Director, Buffalo Federal

Detention Facility,

Respondent.

DECISION AND ORDER

Petitioner Junior Hastings Mark Ghirawoo, a native and citizen of St. Lucia,

petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For

the following reasons, the relief requested is DENIED and the petition is

DISMISSED.

BACKGROUND

Petitioner has been in Department of Homeland Security (“DHS”) custody

since April 26, 2023. Dkt. 1 {| 3; Dkt. 6-1 {| 138. He is detained pending completion

of removal proceedings that began after he was convicted of multiple counts of

robbery in April 2018. See Dkt. 6-1 §] 6; Dkt. 6-2 at 1-3. Petitioner is housed at the

Buffalo Federal Detention Facility. Dkt. 1 4 3.

I. OVERVIEW OF REMOVAL PROCEEDINGS

Ghirawoo first entered the United States on August 7, 2003. Dkt. 6-1 5;

Dkt. 6-2 at 1. He was admitted as a nonimmigrant visitor authorized to remain in

the United States until February 6, 2004. Id. On April 3, 2018, Petitioner was

convicted of multiple counts of robbery in violation of the New York State Penal

Law. Dkt. 6-1 J 6; Dkt. 6-2 at 7. He was sentenced to an aggregate maximum term

of incarceration of seven years, with an earliest possible release date of April 24,

2023. Id.}

On November 9, 2022—while Petitioner was in New York State Department

of Corrections and Community Supervision (“DOCCS”) custody—DHS issued an

Immigration Detainer requiring that DHS be notified at least 48 hours prior to

Petitioner’s release from DOCCS custody. Dkt. 6-1 4 8. DHS then issued a Notice

to Appear on December 19, 2022. Dkt. 6-1 J 9; Dkt. 6-2 at 1. DHS alleged that

Petitioner was subject to removal because he (1) remained in the country beyond

the authorized timeframe; and (2) was convicted of an aggravated felony theft

offense and a felony crime of violence. Dkt. 6-1 { 9; Dkt. 6-2 at 1-3. Petitioner was

1Qn April 17, 2018, United States Immigration and Customs Enforcement (“ICE”)

issued a Notice of Rights and Request for Disposition to Petitioner. Dkt. 6-1 { 7;

Dkt. 6-2 at 12. Petitioner requested a hearing before the Immigration Court. Id.

He also admitted that he was in the Untied States illegally, believed he would face

no harm in returning to his country, and wished to return to his country as soon as

arrangements could be made. Id.

ordered to appear before an Immigration Judge to show why he should not be

removed from the United States. Dkt. 6-2 at 1.2

On April 24, 2023, following his release from DOCCS custody, Petitioner was

arrested and detained in ICE custody. Dkt. 6-1 | 14; Dkt. 6-2 at 22. Upon

Petitioner’s arrest, DHS issued a Notice of Custody Determination providing that

Petitioner was to be detained pending adjudication of the removal proceedings

against him. Dkt. 6-1 { 14; Dkt. 6-2 at 13. Petitioner acknowledged receipt of the

Notice and requested that an Immigration Judge review the custody determination.

See id.

On July 21, 2028, following a hearing, United States Immigration Judge Eric

Schultz denied all of Petitioner’s applications for relief and ordered him removed to

St. Lucia. Dkt. 6-1 7 18; Dkt. 6-2 at 14-17.3 The removal order became

administratively final on August 21, 2028, upon expiration of Petitioner’s time to

file an appeal with the Board of Immigration Appeals (“BIA”). Dkt. 6-1 J 19; Dkt. 6-

2at 23. See 8 C.F.R. § 2141.1(c) (“An order of removal made by the immigration

judge at the conclusion of proceedings .. . shall become final. . . [uJpon expiration of

the time allotted for an appeal if the respondent does not file an appeal within that

2 The hearing was originally scheduled for January 25, 2028. See Dkt. 6-1 4 10;

Dkt. 6-2 at 1. It was twice rescheduled to afford Petitioner time to find an attorney.

Dkt. 6-1 ff 10-11. On March 22, 2028, Petitioner appeared without an attorney

and admitted the charges of removal against him. Id. | 12. The matter was

rescheduled for a hearing on his application for relief from removal. Id.

3 The hearing was twice rescheduled to allow Petitioner time to locate documents

and hire an attorney. See Dkt. 6-1 [{ 15-16. Petitioner eventually indicated that

he intended to proceed pro se. See id. { 17.

time”). DHS then issued a Warrant of Removal/Deportation as to Petitioner. Dkt.

6-1 { 21; Dkt. 6-2 at 18.

II. EFFORTS TO REMOVE PETITIONER

DHS then began taking steps to effectuate Petitioner’s removal from the

United States. Specifically, on August 31, 2023, ICE sent a “presentation packet” to

the Consulate General of St. Lucia requesting travel documents for Petitioner. Dkt.

6-1 | 22; Dkt. 6-2 at 19-20. ICE officials followed up with ICE’s removal unit on

September 22, 2023, to check on the status of the travel documents. Dkt. 6-1 { 24.

The removal unit, however, advised on October 24, 2023, that there was no update

from the Consulate as to the status of the travel documents. Id. § 25. ICE also

contacted the Department of State on November 23, 2023, for assistance with

obtaining travel documents from St. Lucia. Id. □ 27.4

In addition, on numerous occasions between November 2023 and February

2024, ICE communicated with—or attempted to communicate with—the St. Lucia

Consulate regarding travel documents for Petitioner. See Dkt. 6-1 J 26 (On

November 2, 2023, the Consulate advised it was waiting for a response from the St.

Lucia government prior to issuing a travel document); § 29 (On December 28, 2023

and January 10, 2024, ICE attempted to reach the St. Lucia Consulate by phone);

{| 30 (On January 10, 2024, ICE requested an update on the status of the travel

also issued a Decision to Continue Detention on December 21, 2023,

explaining that Petitioner will remain in custody pending removal because he failed

to demonstrate that, if released, he would not pose a danger to the community or

risk of flight. See Dkt. 6-1 | 28; Dkt. 6-2 at 22-24.

document from the Consulate); { 81 (On February 15, 2024, another request to the

consulate was made to the Consulate regarding Petitioner’s travel documents).

II. THE INSTANT PETITION

On March 13, 2024, Petitioner filed a Petition with this Court seeking a writ

of habeas corpus. Dkt. 1. He argues that his “prolonged” detention in DHS custody

violates his Fifth Amendment due process rights. See id. 29-30. According to

Petitioner, his detention “poses actual and substantial hardships and irreparable

injuries,” and he has “no adequate remedy at law other than the instant petition for

a writ of habeas corpus.” See id. |] 31-32. He seeks an order requiring Respondent

to “immediately release” him from custody “with reasonable terms of supervised

release.” See id. at 6 (prayer for relief).

Respondent filed an Answer and Return, arguing that “Petitioner has not

shown good cause to believe [Petitioner’s] removal is not significantly likely to occur

within the reasonably foreseeable future, and, in any event, the Government can

rebut such a showing.” See Dkt. 6 at 1. Petitioner replied. Dkt. 12.

IV. ADDITIONAL EFFORTS TO REMOVE PETITIONER

After Petitioner filed the Petition, DHS continued its efforts to effectuate

removal. This included additional communications with the St. Lucia Consulate

concerning travel documents for Petitioner. See Dkt. 6-1 { 32 (on March 19, 2024, a

phone call was made to the St. Lucia Consulate in New York City); { 33 (on April

18, 2024, an e-mail was sent to the Consulate requesting an update on Petitioner’s

travel documents); | 34 (On April 24, 2024, the Consulate was again contacted

regarding Petitioner's travel documents); J 35 (On May 3, 2024, a meeting was held

with St. Lucia Ambassador Darius Clark, who stated that they are working on the

request).

On July 29, 2024, Petitioner filed a letter stating that he does not believe his

“country will grant travel documents in the near future” due to his “medical

condition” and “age.” Dkt. 138. Petitioner also requested appointment of counsel.

Id. On August 6, 2024, Respondent advised that ICE received a list of recipients for

travel documents from St Lucia, and Petitioner is named on that list. See Dkt. 15,

16. No specific date, however, was provided as to when ICE would receive a travel

document for Petitioner. See Dkt. 16.

Respondent then informed the Court that, on August 19, 2024, an ICE

representative met with the Consulate General of St. Lucia, who indicated that a

travel document will be issued for Petitioner. See Dkt. 20. Respondent further

advised that “ICE has not been advised that Petitioner’s age or medical condition

present any obstacle to his removal or the issuance of travel documents by St.

Lucia.” Id.

DISCUSSION

Petitioner’s detention under Section 1231 comports with the Fifth

Amendment. As explained more fully below, Petitioner fails to establish good

reason to believe that there is no significant likelihood of removal in the reasonably

foreseeable future. He is not, therefore, entitled to habeas relief.

I. JURISDICTION

Habeas corpus review is available to persons who are “in custody in violation

of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(8).

Circuit courts have jurisdiction, to the exclusion of district courts, over challenges to

the legality of final orders of deportation, exclusion, and removal. See Gittens v.

Menifee, 428 F.3d 382, 384 (2d Cir. 2005) (“[The REAL ID Act, 119 Stat. 231, §

106(a) (May 11, 2005)] eliminates habeas jurisdiction over final orders of

deportation, exclusion, and removal, providing instead for petitions of review...

which circuit courts alone can consider.”). District courts, however, can review

claims by aliens challenging the constitutionality of their pre-removal detention.

See Demore v. Kim, 538 U.S. 510, 516-17 (2008).

IJ]. STATUTORY BASIS FOR DETENTION

The parties agree that Petitioner is detained under 8 U.S.C. § 1231. See Dkt.

1 7; Dkt. 6-3 at 4-5. This provision governs the detention of aliens during and

after the removal period—namely, those who, like Petitioner, are subject to final

orders of removal. This period is derived from the statute, which

provides DHS 90 days to effectuate a removal from the United States following the

entry of a final order of deportation or removal. See § 1231(a){1)(A).

Section 1231(a)(1)(B) provides that the removal period begins at the latest of

the following events:

(i) The date the order of removal becomes administratively final.

(ii) Ifthe 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) Ifthe alien is detained or confined (except under an immigration

process), the date the alien is released from detention or confinement.

Id. § 1231(a)(1)(B).6

During the 90-day removal period, detention is mandatory. Jd. § 1231(a)(2).

Once this removal period is over, however, detention is discretionary: an alien may

be detained beyond the removal period if, among other things, he is removable

under certain provisions of 8 U.S.C. § 1227. See id. § 1231(a)(6).

THE DUE PROCESS CLAUSE

In Zadvydas v. Davis, 533 U.S. 678, 701 (2001), the “Supreme Court was

faced with the challenge of reconciling” the statute’s “apparent authorization of

indefinite executive detention with the Due Process Clause of the Fifth

Amendment.” Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003) (citing Zadvydas,

533 U.S. at 701). The Supreme Court held that six months of detention is

“presumptively reasonable.” Zaduydas v. Davis, 533 U.S. at 701. And after six

months, a detained noncitizen may seek release by “provid[ing] good reason to

5 Here, Section 1231 governs Petitioner's detention because (1) he is subject toa

final order of removal, and (2) has not obtained a stay of removal from the Second

Circuit. See id.

believe that there is no significant likelihood of removal in the reasonably

foreseeable future.” Jd. at 701. The government then “must respond with evidence

sufficient to rebut that showing.” Id.

IV. ANALYSIS

Petitioner’s detention under Section 1231 does not violate his due process

rights. Indeed, Petitioner cannot demonstrate “good reason to believe that there is

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

Zadvydas, 533 U.S. at 701. Petitioner’s order of removal became administratively

final on August 21, 2023, upon expiration of his time to appeal his removal order to

BIA. See Dkt. 6-1 7 19; 8 C.F.R. § 2141.1(c). The ninety-day removal period under

the statute expired on November 19, 2023. And the six-month “presumptively

reasonable” period under Zadvydas expired on February 21, 2024. Petitioner has

been detained—under Section 1231—for approximately 12 months.

Within days of the removal order becoming final in August 2023, DHS began

the process of obtaining travel documents for Petitioner’s removal to St. Lucia.

Between August 20238 and November 2023, DHS (1) sent a presentation packet to

the Consulate General of St. Lucia requesting travel documents; (2) followed up

with the ICE removal unit to check on the status of the issue; and (8) contacted the

Department of State for assistance. See Dkt. 6-1 J 22, 24, 27; Dkt. 6-2 at 19-20.

Further, on numerous occasions between November 2023 and August 2024,

DHS communicated with—or attempted to communicate with—the St. Lucia

Consulate concerning travel documents for Petitioner. See, e.g., Dkt. 6-1 | 26, 29,

30, 31, 82, 33, 34, 35. And as of August 2024, DHS was waiting to receive travel

documents from the St. Lucia government. See Dkt. 20. According to Respondent,

(1) the Consulate General of St. Lucia advised DHS that a travel document will be

issued for Petitioner; (2) Petitioner is on a list of future recipients; and (3) DHS has

not been advised that Petitioner’s age or medical condition presents any obstacle to

his removal or the issuance of travel documents by St. Lucia. See id.

It is true that Petitioner has been detained under Section 1231 beyond the

six-month Zadvydas period. But during that time, ICE reviewed his detention on at

least one occasion subsequent to his initial custody determination, and concluded

that Petitioner was a flight risk and a threat to public safety. See Dkt. 6-1 | 14;

Dkt. 6-2 at 13 (Notice of Custody Determination); Dkt. 6-1 28; Dkt. 6-2 at 22-24

(Decision to Continue Detention). See also Abimbola v. Ridge, 181 F. App’x 97, 99

(2d Cir. 2006) (“Although [Petitioner] has been detained well beyond the six-month

period, the INS has reviewed [his] detention on at least two occasions, providing

him with notice of at least the most recent reviews, and determined that [he] was a

flight risk and that his removal could be effectuated as soon as judicial review of his

removal was complete”). On this record, Petitioner's detention under Section 1231

is lawful.§

6 Because Petitioner did not demonstrate “good reason to believe that there is no

significant likelihood of removal in the reasonably foreseeable future,” the Court

need not determine whether the Government rebutted such a showing. See

Zadvydas, 533 U.S. at 701. In any event, on this record, the Court concludes that

the Government has done so.

10

CONCLUSION

For the foregoing reasons, the relief requested is DENIED. The Petition is

DISMISSED without prejudice to the filing of any new Petition in the future based

on new and different facts and consistent with the analysis above. Petitioner’s [13]

motion to appoint counsel is DENIED as moot. The Clerk of Court shall close this

case.

SO ORDERED.

Dated: August 29, 2024

Buffalo, New York

he

JO L. SINATRA, JR.

UNITED STATES DISTRICT JUDGE □□

11

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