The opinion of the court was delivered by: Judge Conner
(Magistrate Judge Blewitt)
REPORT AND RECOMMENDATION
On April 14, 2010, Petitioner, Pedro Crisostomos, while a prisoner at the State Correctional Institution at Huntingdon, Pennsylvania ("SCI-Huntington"), filed, pro se, a seven-page Habeas Corpus Petition pursuant to 28 U.S.C. § 2241. (Doc. 1). Petitioner attached three (3) exhibits to his Habeas Petition. (Id.) On April 16, 2010, the Court issued a Show Cause Order to Respondents. (Doc. 3). Named as Respondents are Homeland Security Agency, Immigration and Customs Enforcement Agency ("ICE"), and the United States Attorney General. On May 6, 2010, Respondents filed a Response to the Habeas Corpus Petition, with exhibits. (Doc. 7). On May 20, 2010, Petitioner filed a Reply to the Respondents' Response and a Petition for a Writ of Ne Exeat (or Motion to Stay Removal) requesting that the Court prohibit Respondents from deporting him until his Habeas Petition is decided.*fn1 (Doc. 8, Reply and Doc. 9, Petition for Writ of Ne Exeat).
Petitioner is a native and citizen of the Dominican Republic. Petitioner entered the United Stateson June 19, 1982, as a Child of a Lawful Permanent Resident. (Doc. 7, Ex. A, Record of Deportable/Inadmissible Alien). At no time did Petitioner ever adjust his status to become a United States citizen.
Petitioner has a criminal record dating back to May 15, 1991, which includes four different state convictions.*fn2 More recently, on November 14, 2005, petitioner plead guilty to four counts of Delivery of Cocaine and one count of Conspiracy to Deliver Cocaine in York County, Pennsylvania. (Doc. 7, Ex. C, Sentencing Transcript, at 1-3). Petitioner was sentenced to five to ten years incarceration, costs, and restitution. (Id.).
On October 27, 2006, ICE commenced removal proceedings against Petitioner by issuing a Notice to Appear (Doc. 7). (Ex. D). On November 7, 2007, the Immigration Judge ("IJ") issued an Oral Decision of the Court. (Doc. 7, Ex. E). The IJ found Petitioner removable under INA Section 237 (a)(2)(A)(iii), namely, that Petitioner was convicted of an aggravated felony. (Id. at 4). Further, the IJ found that Petitioner's conviction for aggravated felony rendered him ineligible for cancellation of removal. (Id.). The IJ also found that Petitioner was removable under Section 237 (a)(2)(B)(i), since he was convicted of a drug offense. (Id. at 4). On November 7, 2007, the IJ issued a Removal Order directing that Petitioner be removed from the United States to the Dominican Republic. (Doc. 7, Ex. F).
Petitioner appealed the Removal Order to the Board of Immigration Appeals ("BIA"). (Id., Ex. G). On February 26, 2008, the BIA issued an Order dismissing Petitioner's appeal. (Id. at 1). Accordingly, the Petitioner's Order of Removal became administratively final on February 26, 2008.
Kent J. Frederick, Chief Counsel for the Philadelphia Office of ICE, avers that on April 29, 2010, he searched the Enforce Alien Removal Module ("EARM"), ICE's database for tracking the detention status of illegal aliens in the United States. (Doc. 7, Ex. H, Declaration of Kent J. Frederick). Frederick avers that EARM indicated that Petitioner was serving his state sentence in SCI-Huntingdon with an early release date set for May 20, 2010.*fn3 At the time Petitioner completes service of his state court sentence, he is to be released into ICE custody.*fn4 (Id.)
In his Reply to Respondents' Response, Petitioner states that on May 20, 2010, he was paroled on his state sentence into the custody of Homeland Security, and that he was being held for "pick-up" by Homeland Security. (Doc. 8, p. 2). Petitioner states that since he "has made parole [he] should have been released to his family in York[,] Pennsylvania months ago." (Doc. 8, p. 2). Petitioner argues that ICE's detainer "is an abuse." (Id.).*fn5
III. Claims of Habeas Petition
Petitioner essentially claims that because he was granted parole on his state sentence, it is unconstitutional that he be held in ICE custody. Petitioner claims that when he was paroled, he should have been released back into the community. According to Petitioner, if ICE wishes to keep him in custody after he is paroled, ICE may not do so until a hearing is conducted. Because no hearing has ...