The opinion of the court was delivered by: Judge Muir
Petitioner, a detainee of the United States Immigration and Customs Enforcement ("ICE"), currently confined in the Clinton County Correctional Facility, McElhattan, Pennsylvania, filed the above captioned petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Rodney challenges his continued detention by ICE. Because petitioner's continued detention is constitutionally permissible, the petition will be denied.
Petitioner, a native and citizen of Guyana, entered the United States on or about February 27, 1996, as a lawful permanent resident alien. (Doc. 8, Ex. 2, Notice to Appear).
On February 11, 2004, following a jury trial, petitioner was convicted in the United States District Court for the Southern District of New York of bank fraud (Count 1) and theft of government property (Count 2). (Doc. 8, Ex. 5, United States v. Rodney, 1:03-cr-0819-SWK-1, Judgment in Criminal Case). On May 14, 2004 petitioner was sentenced to a five (5) month term of imprisonment on each count of the Indictment and a three (3) year term of supervised release which required Petitioner to serve a five (5) month term of home confinement as one of the conditions of supervised release. Id.
On March 21, 2005, the United States Court of Appeals for the Second Circuit affirmed petitioner's conviction, but remanded the case pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), because the district court "treated the federal Sentencing Guidelines as mandatory. (Doc. 8, United States v. Rodney, 124 Fed.Appx. 67, 68 (2d Cir. 2005).
On April 14, 2005, petitioner's probation officer notified the district court that petitioner had violated the terms of his supervised release. (Doc. 8, Ex. 4, United States v. Rodney, 1:03-cr-0819-SWK-1, docket sheet at pp. 6-7).
On August 15, 2005, Rodney was resentenced in accordance with the remand from the Second Circuit. Id. at p. 10. In addition to his sentence, petitioner was found guilty of violating the terms of his supervised release and was sentenced to an additional year of supervised release, in addition to the term he was currently serving. Id. Rodney's term of supervised release was, therefore determined to expire on July 8, 2008, instead of July 8, 2007. Id.
On November 9, 2006, petitioner was sentenced to an eight month term of imprisonment for again violating the terms of his supervised release. Id. at p. 12. Petitioner surrendered on November 13, 2006, id., and his sentence expired on July 12, 2007.
In a Notice to Appear dated July 12, 2007, petitioner was charged with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(M)(i)*fn1 , at any time after admission. (Doc. 8, Ex. 2, Notice to Appear). The Notice to Appear was based on petitioner's 2004 bank fraud conviction Id. That same day, Department of Homeland Security (DHS) took Rodney into custody, pending a final determination of his case by the immigration judge. (Id.).
By Order dated November 6, 2007, an Immigration Judge found petitioner removable as charged. (Doc. 8, Ex. 6, Oral Decision of Immigration Judge). On November 26, 2007, Petitioner filed a timely appeal to the Board of Immigration Appeals ("BIA"). (Doc. 1, petition).
On March 6, 2008, finding that Rodney established a claim of ineffective assistance of counsel, in counsel's failure to challenge Rodney's removability based on the aggravated felony listed in the Notice to Appear, the BIA vacated the Immigration Judge's November 6, 2007 decision and remanded the action to the Immigration Judge for further proceedings. (Doc. 8, Ex. 7, BIA Decision).
On April 11, 2008, the Immigration Judge held that the DHS failed to establish the charge of removability by clear and convincing evidence in that it failed to establish a loss in excess of $10,000. (Doc. 8, Ex. 8, Ruling on Aggravated Felony and Order of Immigration Judge). As a result, the Immigration Judge dismissed ...