THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS
Petitioner Jeffrey Barnes ("Barnes" or "Petitioner") a detainee of the Bureau of Immigration and Customs Enforcement ("ICE") presently confined at the Berks County Prison in Berks County, Pennsylvania,*fn1 filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn2 ICE is named as the Respondent.
It is undisputed that the Petitioner is a native and citizen of Jamaica. On August 5, 1981, the former Immigration and Naturalization Service ("INS")*fn3 admitted the Petitioner to the United States as a lawful permanent resident. (Rec. Doc. 1, Ex. 8 at p. 6). On January 17, 2002, the Petitioner was convicted in the Supreme Court of the State of New York, Queens County, of the offense of criminal possession of a controlled substance -- to wit, cocaine -- in the third degree, in violation of section 220.16 of the New York Penal Law. The conviction was pursuant to the Petitioner's guilty plea. The court sentenced Barnes to a term of imprisonment of one and one-half to four and one-half years. (Rec. Doc. 1, Ex. 8 at pp. 7-14).
On May 17, 2002, the INS initiated removal proceedings against the Petitioner by serving him with a notice to appear. In this charging document, the INS alleged that the Petitioner was deportable from the United States under subsections 237(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the Immigration and Nationality Act of 1952, as amended ("the Act"), 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i) (2000). ((Rec. Doc. 1, Ex. 8 at pp. 16-18).
In a decision dated September 12, 2002, the immigration judge found the Petitioner to be deportable as charged and ordered him removed from the United States. Although the Petitioner reserved his right to file an appeal from the immigration judge's decision with the Board of Immigration Appeals ("BIA"), he did not file an appeal with the BIA. (Rec. Doc. 1, Ex. 8 at pp. 20-21). ICE took Barnes into custody on January 2, 2004, after he had finished serving his sentence in state prison. (Rec. Doc. 1, Ex. 8 at pp. 23-24).
On February 24, 2004, the Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the Middle District of Pennsylvania, in which he challenged the validity of his guilty plea in his criminal case. See Barnes v. INS, 4:04-cv-00382. On June 7, 2005, we transferred the case to the United States Court of Appeals for the Second Circuit pursuant to the REAL ID Act of 2005, Pub. L. No. 109-13, Div. B. 119 Stat. 231 (May 11, 2005).*fn4
On January 20, 2005, Barnes filed the instant Petition in the United States District Court for the Eastern District of New York, challenging the September 12, 2002 final order of removal and the lawfulness of his detention pending the resolution of that challenge. On February 8, 2005, Judge Nicholas Garaufis entered an order staying the Petitioner's final order of removal. (Rec. Doc. 1, Ex. 1 at p. 2).
As of the writing of this Memorandum, the Petitioner has not been deported and remains detained by ICE at the Berks County Prison, pending the execution of his final order of removal. On July 1, 2004, ICE conducted a post-order custody review for the Petitioner and issued a discretionary decision not to release him while his removal is stayed. (Rec. Doc. 1, Ex. 8 at pp. 50-51).
Therefore, the only matter for our remaining for our review is the portion of the Petition that challenges his continued detention by ICE pending the execution of his removal order.
Section 241(a)(1)(B) of the Act addresses the custody of aliens who are subject to administratively final orders of removal. See Immigration & Nationality Act § 241(a), 8 U.S.C. § 1231(a)(applying to the "Detention, Release, and Removal of Aliens Ordered Removed"). Under section 241(a), detention of an alien is authorized and mandatory during a ninety-day removal period. Section 1231(a)(1)(B) provides:
The removal period begins to run on the latest of the following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if the court orders a stay of the removal of the alien, the ...