The opinion of the court was delivered by: A. RICHARD CAPUTO, District Judge
John Kingsley Hendricks, a Bureau of Immigration and Customs
Enforcement ("ICE") detainee, commenced this action with a pro
se petition for writ of habeas corpus filed pursuant to the
provisions of 28 U.S.C. § 2241. Petitioner, a native and citizen
of Jamaica, is seeking his immediate release from ICE custody.
A show cause Order was issued by the Court on September 20,
2004, directing Respondents to answer the petition within twenty
(20) days of the date of the Order. Respondents have filed an
answer to the habeas petition, Petitioner filed a traverse, and
the matter is ripe for disposition. For the following reasons,
the petition will be denied.
Petitioner entered the United States on July 30, 1981, as a
lawful permanent resident. (Doc. 13, Ex. A). On April 21, 1994,
Petitioner was convicted in the County Court for Nassau County,
New York, for the offense of attempted rape in the first degree.
(Id., Ex. B). As a result of his conviction, the former
Immigration and Naturalization Service*fn1 commenced removal proceedings against Petitioner with a Notice to
Appear ("NTA") on February 12, 1998. (Id., Ex. A). The NTA
sought to remove Petitioner pursuant to the provisions of
8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an
aggravated felony. (Id.)
On August 19, 1998, the immigration judge ("IJ") ordered
Petitioner removed from the United States to Jamaica. (Id., Ex.
C). Petitioner appealed the IJ's decision to the Board of
Immigration Appeals ("BIA"), and the BIA dismissed the appeal on
February 2, 1999. (Id., Ex. D). On April 13, 1999, Petitioner
filed a motion for reconsideration with the BIA, and the motion
was denied on May 10, 1999. (Id., Ex. E).
Subsequently, Petitioner filed a petition for writ of habeas
corpus which was docketed in the United States District Court for
the Southern District of New York ("SDNY") on November 12, 1999.
(Id., Ex. F). By Order dated April 7, 2000, the SDNY granted
Petitioner a stay of removal and closed the case, subject to
reopening by either party following a decision by the United
States Court of Appeals for the Second Circuit in other
Petitioner then filed the instant action, in which he
challenges his continued detention pending removal. Petitioner
has been detained by ICE since December 17, 2001, upon completion
of his New York State prison sentence. Petitioner claims his
removal is not likely in the reasonably foreseeable future, and
he is entitled to release pending removal. Respondents claim that
Petitioner's continued detention is appropriate, and the petition should be denied.
Detention, release, and removal of aliens ordered removed is
governed by the provisions of 8 U.S.C. § 1231. Under § 1231(a),
the Attorney General has 90 days to remove an alien from the
United States after his order of removal becomes final, during
which time detention is mandatory.*fn2 At the conclusion of
the 90-day period, the alien may be held in continued detention,
or may be released under continued supervision.
8 U.S.C. §§ 1231(a)(3) & (6). Since Petitioner has received a stay of removal
from the SDNY, his 90-day removal period has yet to run. "If the
removal order is judicially reviewed and if the court orders a
stay of the removal of the alien, [the removal period does not
commence until] the date of the court's final order."
8 U.S.C. § 1231(a)(1)(B)(ii). Since the SDNY has issued a stay of removal,
and Petitioner's challenge to removal may be reopened by either
party after a decision by the Second Circuit Court of Appeals in
other litigation, the 90-day removal period has not begun.
Moreover, Petitioner has received custody reviews, and his
release has been denied because he poses a threat to society and
his removal is likely to occur if the stay of removal is lifted.
(Doc. 13, Ex. G). Although Petitioner claims that he is entitled
to release under the holding in Zadvydas v. Davis, 533 U.S. 678
(2001), Zadvydas addressed the issue of whether § 1231(a)(6) authorizes the Attorney General to
detain a removable alien indefinitely beyond the 90-day removal
period. Since Petitioner's 90-day removal period has not
commenced, Zadvydas is inapplicable. An appropriate order
AND NOW, THIS 23rdp> DAY OF JUNE, 2005, in accordance with
the foregoing memorandum, IT IS HEREBY ORDERED THAT:
1. The petition for writ of habeas corpus (Doc. 1) is DENIED,
without prejudice to Petitioner filing a new habeas petition
after his removal order ...