The opinion of the court was delivered by: Judge McClure
Maurice Roy Duhaney, an inmate presently confined in the Lackawanna County Prison, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Named as respondents are the United States Department of Homeland Security (hereinafter "DHS"), the Bureau of Immigration and Customs Enforcement (hereinafter "ICE"), Eric H. Holder, Jr., and Janine Donate.
Petitioner brought the instant habeas petition to challenge his detention in immigration custody. §2241 is the proper vehicle for individuals alleging that they are being illegally detained in immigration custody. See Zadvydas v. Davis, 533 U.S. 678, (2001). Petitioner asserts that he has exhausted his administrative remedies, and respondent does not contest this assertion. Petitioner also currently has a "petition for review of final order of removal" pending in the Third Circuit. See Case No. 08-2349.
Duhaney, a citizen of Jamaica, was born in Jamaica in 1965. In 1973, he was admitted to the United States and became a lawful permanent resident. He has resided in the United States since 1973.
In September 1985, Duhaney was convicted of manslaughter in the second degree and criminal possession of a weapon in the second degree. In October 1985, Duhaney was convicted of criminal sale of a controlled substance in the third degree. Duahney was sentenced to consecutive terms of imprisonment of 5 to 15 years; and was released from prison in 1995.
Based on Duhaney's conviction for the criminal sale of a controlled substance, on June 24, 1986, the Immigration and Naturalization Service*fn1 (hereinafter "INS") served an order to show cause why Duhaney should not be deported. On August 20, 1993, the immigration judge found that Duhaney was deportable, but granted a waiver of deportation pursuant to § 212(c) of the Immigration and Naturalization Act (hereinafter "INA").
On September 25, 1998, Duhaney pled guilty to criminal possession of a controlled substance in the third degree. On March 24, 2000 judgment was entered convicting Duhaney of that crime and a term of imprisonment of 4 to 9 1/2 years was imposed.
Based on Duhaney's 1998 conviction for the criminal possession of a controlled substance, on March 25, 2004, DHS served a Notice to Appear on Duhaney charging him with removal from the United States. On October 6, 2004, the immigration judge ordered Duhaney's removal based on Duhaney's March 24, 2000 conviction. On January 18, 2005, the Board of Immigration Appeals (hereinafter "BIA") affirmed the decision, without opinion.
On August 9, 2006, Duhaney's March 24, 2000 conviction (which predicated removal) was vacated and the indictment was dismissed with prejudice.
On December 4, 2006, Duhaney filed a Motion to Reopen and Terminate Removal Proceedings based on the grounds that the conviction predicating removal was vacated and dismissed with prejudice.
On December 6, 2006, DHS-ICE filed a motion to remand and reopen the removal proceedings. The motion requested that the BIA remand the proceedings to the Immigration Court so that the previous removal order could be terminated because of the vacated predicate crime. The motion further requested that the order of removal be rescinded without prejudice for DHS-ICE to file a new Notice to Appear based on Duhaney's "other, separate and distinct" criminal convictions. The BIA granted the motion and remanded the record to the Immigration Judge.
On remand, DHS-ICE filed additional charges of deportability based on Duhaney's 1985 convictions for manslaughter in the first degree, criminal possession of a weapon in the second degree and criminal sale of a controlled substance in the third degree. The charges went on to state that in 1986 Duhaney was served with an Order to Show Cause and subjected to deportation proceedings based on his conviction for illicit trafficking in a controlled substance, ...