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Brandao v. District Director for Immigration and Customs Enforcement

November 3, 2009

GELSON LOPES BRANDAO, PETITIONER,
v.
DISTRICT DIRECTOR FOR IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Martin C. Carlson United States Magistrate Judge

(Magistrate Judge Carlson)

MEMORANDUM OPINION AND ORDER

I. Statement of Facts and of the Case

A. Gelson Brandao's Criminal History

This case involves a habeas corpus petition filed by an immigration detainee and criminal recidivist, Gelson Brandao. The petitioner is a native and citizen of the Republic of Cape Verde. (Doc. 7, Immigrant Visa and Alien Registration, Ex. 1; Record of Deportable/Inadmissible Alient, Ex. 2.) He was admitted to the United States at New York, New York on or about August 23,1985, as a lawful permanent resident. (Doc. 7, Ex. 2.) Brandao is also a convicted felon and drug trafficker, with a criminal history of theft, robbery, drug and firearms offenses in the United States, which spans the past 14 years.

Brandao's extensive criminal history in this country began at age 16 in November, 1995, when he was arrested for stripping a motor vehicle and charged with receiving stolen property. (Doc. 7, Pre-sentence Report, Ex. 5, at 20.) Following this juvenile adjudication, Brandao then amassed seven additional criminal convictions in three different jurisdictions in the span of only seven years. Thus, in 1996 at age 17, Brandao was convicted of distribution of crack cocaine and illegal firearms possession in Dorchester, Massachusetts. (Id. at 21.) Three years later, in September of 1999, Brandao was convicted again in Massachusetts of another drug offense, marijuana distribution. (Id. at 21-22.) Undeterred by these law enforcement encounters, Brandao was then arrested and convicted in Massachusetts on three additional occasions between March and September 2001 for offenses ranging from possession of controlled substances to operating a motor vehicle without a license. (Id. at 23-4.)

On January 1, 2002, Brandao had yet another encounter with law enforcement when he was found to be in possession of a loaded handgun with an obliterated serial number during a 3:00 a.m. traffic stop in Brockton, Massachusetts. (Id. at 17.) Brandao's possession of this firearm at a time when he was a previously convicted felon and drug trafficker inspired the interest of federal law enforcement and Brandao was indicted in the District of Massachusetts on federal firearms charges on November 13, 2002. (Id. at 16.)

At about the time of this federal indictment, Brandao left Massachusetts. By March 2003, Brandao, who was now 24 years old, had moved from Massachusetts to Miami, Florida where he was arrested, charged and convicted of strong-arm robbery and marijuana possession. (Id. at 24.) Following this Florida arrest and conviction Brandao was returned to Massachusetts where he faced his federal firearms charges. On March 2, 2005, Brandao was convicted in the United States District Court for the District of Massachusetts for the offense of possession of ammunition by a felon, in violation of 18 U.S.C § 922(g)(1), and was sentenced to a seventy-two month term of imprisonment. (Doc.7,Criminal Judgment, Ex. 4.)

B. Brandao's Removal Proceedings

As Brandao's federal prison term drew to a close, officials of the Bureau of Immigration and Customs Enforcement ("ICE") commenced removal proceedings against the petitioner. As part of these proceedings a Notice to Appear was served on Brandao on September 12, 2008. This Notice of Appear placed Brandao on notice that he was subject to removal from the United States on three separate grounds under the Immigration and Nationality Act. First, Brandao was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii) as a result of his conviction of an aggravated felony, specifically firearms offenses. In addition, Brandao was notified that he was also subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii) because of his conviction for a separate and distinct aggravated felony under federal immigration law; namely, an offense relating to explosive materials. Finally, this notice advised Brandao that his removal from the United States was also sought under 8 U.S.C. § 1227(a)(2)( C ) as a result of his conviction for offenses involving the purchase, sale, exchange, ownership or carrying of a firearm or destructive device. (Doc.7, Ex. 2 at 7.) As an aggravated felon who illegally possessed firearms, Brandao was also subject to the mandatory detention provisions of the immigration laws, see 8 U.S.C. § 1226(c)(1)(B), and was ordered detained pending completion of these removal proceedings.

While detained, Brandao elected to actively contest these removal proceedings, a decision which caused numerous delays in the removal hearings. Thus, at immigration hearings on October 23, 2008, and November 12, 2008, Brandao sought, and was granted, additional time to secure legal representation. (Doc. 7, Transcript of Hearing, Oct. 23, 2008, Ex. 6 at 57-60; Transcript of Hearing, Nov. 12, 2008, Ex. 7 at 61-63.) Following the two-month delay caused by Brandao's efforts to secure counsel, on January 21, 2009, Brandao's attorney moved to terminate these removal proceedings claiming that Brandao had derived United States citizenship through his mother. (Doc. 7, Transcript of Hearing, Jan. 21, 2009, Ex. 8 at 64-72.)

In order to fully protect Brandao's rights and address the issues raised by Brandao, the Immigration Judge held Brandao's motion in abeyance and directed Brandao to file Form N-600, an application for citizenship. (Id.) Approximately one month then elapsed until Brandao prepared and submitted this form on February 20, 2009. Immigration officials then promptly addressed this citizenship claim raised by Brandao. Indeed, within days of receipt of the application, on February 23, 2009, Field Office Director of U.S. Citizenship and Immigration Services ("USCIS") issued a Notice of Decision as to Brandao's Application for Certificate of Citizenship.(Doc. 7, Application for Certificate of Citizenship, Ex. 9 at 73-79; Notice of Decision, Ex. 10 at 80-82.) The Notice of Decision explained that Brandao's application was denied because, by virtue of Cape Verde's Decree Law No. 84/76 dictating that any child born in Cape Verde after October 1, 1976, is deemed to be the legitimate child of his natural father, Brandao was unable to derive citizenship through his mother. (Doc. 7, Notice of Decision, Ex. 10 at 80-82.)

Brandao then took a series of steps to contest this ruling, steps which have further delayed the resolution of these removal proceedings. At the outset, on February 25, 2009, Brandao's attorney requested that the Immigration Judge review the decision denying Brandao's application for citizenship. (Doc.7, Transcript of Hearing, Feb. 25, 2009, Ex. 11 at 83-95.). The Immigration Judge promptly considered Brandao's request, denying Brandao's motion to terminate removal proceedings based on his claim of derived citizenship in an April 3, 2009 Interlocutory Ruling. (Doc. 7, Interlocutory Ruling on Motion, Ex. 12 at 96-98.) On April 8, 2009, the Immigration Judge also denied Brandao's request for a change in custody status and ordered him to be removed from the United States, paving the way for Brandao's removal from this country. (Doc.7, Order of the Immigration Judge with Respect to Custody, Ex. 13; Oral Decision of the Immigration Judge, Ex. 14; Transcript of Hearing, Apr. 8, 2009, Ex. 15).

Presented with a removal order Brandao once again chose to follow a litigative path which resulted in additional delay, when he appealed this decision to the Board of Immigration Appeals ("BIA"). On July 31, 2009, the BIA issued a decision dismissing Brandao's appeal, and agreeing that he may not derive citizenship through his mother. (Doc. 7, BIA Decision, Ex. 17 at 112-116.) Brandao then filed a Petition for Review of his removal proceedings before the United States Court of Appeals for the Third Circuit. (Doc. 7, Docket, Ex. 20 at 138-140.)

D. Post-Final Order Detention and Removal Efforts

With the entry of a final removal order in this case, immigration officials moved forward promptly to effect Brandao's removal from the United States. Thus, on August 11, 2009, immigration officials requested a travel document from the Consulate of Cape Verde on Brandao's behalf. (Doc. 7, Travel Document Request, Ex. 18 at 117-136.) At the same time immigration officials took steps to ensure that Brandao did not experience unnecessary detention and delay in his removal from the United States. As part of this effort, on August 14, 2009, a Notice to Alien of File Custody Review was issued and served on Brandao, advising him that if he was not already removed from the United States, his custody status would be reviewed on or about October 14, 2009. (Doc. 7, Notice to Alien of File Custody Review, Ex. 19). This notice expressly alerted Brandao to his due process rights as a criminal alien awaiting removal, and explained that his continued detention or release would be dependent on him demonstrating to the Department of Homeland Security that he "will not pose a danger to the community and will not present a flight risk." (Id.) Brandao was also advised that he may submit "any documentation [he] wish[es] to be reviewed in support of [his] release." (Id.)

E. Brandao's Habeas Petition

Displeased by the fact of this continuing detention, Brandao filed this pro se motion for a writ of habeas corpus on September 23, 2009. (Doc. 1.) Characterizing this case as one which only involves pre-removal detention of an alien, this petition challenges the ability of immigration officials to continue to hold Brandao while he completes the litigation of this removal case. The ...


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