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Burke v. Chertoff

March 3, 2006

EVELYN BURKE, PETITIONER
v.
SECRETARY MICHAEL CHERTOFF, ET AL., RESPONDENT



The opinion of the court was delivered by: Judge Kane

(A19 473 594)

MEMORANDUM AND ORDER

Before the Court is Petitioner's petition for a writ of habeas corpus, in which he has challenged the constitutionality of his continued detention pending his deportation from the United States to his native Jamaica. (Doc. No. 1.) The Government filed a timely response, and the Petitioner has submitted a traverse. For the reasons that follow, the petition will be denied.

I. Background

Petitioner is a native and citizen of Jamaica who entered the United States on or about November 18, 1968 as a non-immigrant student with authorization to remain in the United States until November 18, 1969. (Govt. Ex. A.) Petitioner stayed in the United States beyond November 18, 1969 without authorization. (Id.)

On January 17, 1975, the former United States Immigration and Naturalization Service ("INS") initiated removal proceedings against Petitioner pursuant to former section 241(a)(2) of the Immigration and Nationality Act ("INA"). Approximately ten years after these removal proceedings were initiated, Petitioner was convicted of committing a number of crimes, including larceny, possession of controlled substances, and rape. (Govt. Ex. B.) As a result of the foregoing convictions, on July 24, 2002 and August 27, 2002, the INS brought additional charges of inadmissibility/deportability against Petitioner pursuant to Sections 241(a)(2)(A)(ii) and 241(a)(2)(A)(iii) of the INA, codified respectively at 8 U.S.C. §§ 1231(a)(2)(A)(ii) and (iii). (Id.)

Petitioner subsequently appeared before an Immigration Judge and was found removable on all counts. (Govt. Ex. C.) In connection with these proceedings, Petitioner sought protection under the CAT. (Id.) The Immigration Judge found that Petitioner had not demonstrated that he was entitled to withholding of removal under CAT and ordered Petitioner removed to Jamaica. (Id.) On June 18, 2003, the Board of Immigration Appeals affirmed the Immigration Judge's decision. (Govt. Ex. D.)

Following these decisions, Petitioner commenced a number of civil actions, habeas petitions, and appeals in various district courts and courts of appeal, sometimes using an alias. (Govt. Ex. E.) Most of these actions have been dismissed. (Id.) However, the record submitted by Respondent reveals that on November 1, 2004, the United States District Court for the Eastern District of New York entered a stay of Petitioner's removal pending review of his challenge to his final order of removal. (Govt. Ex. F.) Subsequent to the stay being entered, Petitioner received a custody review following which it was determined that Petitioner should remain in custody because he represented a danger to the community and a flight risk. (Govt. Ex. G.) Additionally, the review noted that the Jamaican embassy had agreed to issue travel documents for Petitioner's return, and that Petitioner's removal would have been effected promptly but for the stay entered by the Eastern District of New York.

II. Procedural History

Petitioner commenced the instant habeas petition with this Court on August 12, 2005, arguing that his removal to Jamaica would violate United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, G.A. Res 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) ("CAT"), and that he had been detained without sufficient or meaningful custody reviews in violation of the Fifth Amendment to the United States Constitution. Because Congress has stripped district courts of jurisdiction to consider challenges to final orders of removal, the Court subsequently transferred all of Petitioner's claims to the United States Court of Appeals for the Third Circuit.*fn1 However, the Court retained jurisdiction over Petitioner's claim that his continued detention pending removal was unconstitutional.

The Government filed a timely response to the petition, noting that in October 2005, Petitioner had been given a timely custody review pursuant to 8 C.F.R. § 241.4 following which the United States Bureau of Immigration and Customs Enforcement ("ICE") determined that Petitioner should not be released pending his removal because he was deemed a flight risk and continued to post a threat to the community.*fn2 (Govt. Ex. G.) The Government argues that Petitioner has been afforded the custody reviews to which he is entitled. Additionally, the Government notes that although most courts have dismissed Petitioner's numerous filings, the United States District Court for the Eastern District of New York entered a temporary stay of Petitioner's removal pending that court's disposition of Petitioner's habeas petition. (Govt. Ex. F.) On the basis of this stay, the Government maintains that the removal period during which Petitioner may be removed to Jamaica has been tolled. Finally, the Government contends that Petitioner has not demonstrated that he is unlikely to be removed from the United States once the stay imposed by the United States District Court for the Eastern District of New York is lifted.

Petitioner subsequently filed a lengthy traverse, which focused substantially on Petitioner's prior criminal convictions that formed the predicate for his removal, and argument that his pending removal violates CAT, together with some general argument regarding the sufficiency of the custody reviews he has been afforded to date. However, Petitioner presented little argument to demonstrate persuasively that his continued detention pending his removal represents a constitutional violation, nor any legitimate argument that his removal was unlikely to be effected promptly once the stay imposed by the Eastern District of New York had been lifted.

III. Discussion

Detention, release, and removal of aliens ordered removed from the United States is governed by the provisions of 8 U.S.C. § 1231. Pursuant to 8 U.S.C. § 1231(a), the Attorney General has 90 days to remove an alien subject to a final order of removal, ...


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