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Pujalt-Leon v. Holder

United States District Court, M.D. Pennsylvania

January 11, 2013

FERNANDO PUJALT-LEON, Petitioner
v.
ERIC HOLDER, et al., Respondents

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Fernando Pujalt-Leon, Petitioner, Pro se, York, PA.

For Atty. General Eric Holder, Warden Mary Sabol, Thomas L. Decker, District Director of Pennsylvania Field Office for Detention, John Morton, Asst. Secretary for Immigration & Customs Enforcement, Janet Napolitano, Respondents: Mark Morrison, LEAD ATTORNEY, U.S. Attorney's Office - Prisoner, Harrisburg, PA; Melissa Swauger, U.S. Attorney's Office - Prisoner Litigation, Harrisburg, PA.

THOMAS M. BLEWITT, United States Magistrate Judge. Judge Caputo.

OPINION

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THOMAS M. BLEWITT, United States Magistrate Judge.

REPORT AND RECOMMENDATION

I. Procedural Background.

On September 4, 2012, the Petitioner, Fernando Pujalt-Leon, a detainee of the Bureau of Immigration and Customs Enforcement (" ICE" ), filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). Petitioner, proceeding pro se, names as Respondents: Attorney General Eric Holder; Janet Napolitano, Secretary of the Department of Homeland Security; John Morton, Assistant Secretary for ICE; Thomas L. Decker, District Director of the Pennsylvania

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Field Office for Detention; and Mary Sabol, Warden of the York County Prison (" YCP" ) (collectively, " Respondents" )[1], where Petitioner is currently confined.[2] (Doc. 1). Petitioner paid the filing fee. (Doc. 3).

The Court issued an Order to Show Cause on September 7, 2012, and directed Respondents to answer the habeas petition. (Doc. 4). After being granted two extensions of time, Respondents filed a Response to the Habeas Petition with attached Exhibits on October 18, 2012. (Doc. 17). Petitioner filed a Traverse on November 14, 2012. (Doc. 22).[3]

II. Factual Background.

Petitioner is a citizen and native of Peru. (Docs. 1 and 17). He entered the United States on a B2, temporary visitor visa on January 29, 1997. (Doc. 1 at 5, Doc. 17, Ex. A, pp. 1-2). On April 6, 2000, Petitioner pled guilty to one count of threatening to kill and was sentenced to probation for one year. (Doc. 17, Ex. A, p. 3). On January 5, 2005, Petitioner was convicted of retail theft and sentenced to probation for two years. ( Id. )

Prior to the above convictions which led to the removal proceedings against Petitioner, Petitioner was arrested seven additional times: 1) On September 18, 1998, Petitioner was arrested for threatening to kill, contempt of court order, and harassment, the case was sent to family court; 2) On October 1, 1998, Petitioner was arrested for stalking and contempt of court, the charges were merged with his charges from his April 6, 2000 conviction; 3) On March 11, 1999, Petitioner was arrested for providing false reports to law enforcement and hindering apprehension, the charges were dismissed; 4) On August 26, 1999, Petitioner was arrested for simple assault and contempt, the charges were dismissed; 5) On September 9, 1999, Petitioner was arrested for contempt of court and harassment, the charges were sent to family court; 6) On July 7, 2006, Petitioner was arrested for harassment, the charges were dismissed; and 7) On December 29, 2010, Petitioner was arrested for violation of a protection from abuse order. ( Id., pp. 2-3).

Prior to his December 29, 2010 arrest, Petitioner was scheduled for a hearing before the immigration court in the YCP. (Doc. 17, Ex. B, ¶ 3). Prior to the hearing, on March 3, 2009, the immigration judge administratively closed the case by order because Petitioner was not in ICE custody. ( Id. ). After his December 29, 2010 arrest by the Philadelphia Police Department

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for violation of a protection from abuse order, Petitioner was placed into ICE custody. ( Id., ¶ 4). On December 30, 2010, ICE issued a Notice to Appear to Petitioner under sections 237(a)(1)(B) and 237(a)(2)(A)(ii) of the Immigration and Naturalization Act (" INA" ) as a person convicted of two crimes of moral turpitude not arising out of a single scheme of criminal misconduct and as a person remaining in the United States for a time longer than permitted. (Doc. 17, Ex. C, p. 3). On January 19, 2011, the Petitioner appeared before the immigration court and requested an adjournment to seek counsel and further requested a bond hearing. (Doc. 17, Ex. B, ¶ 5). The proceedings were adjourned by the immigration court until February 15, 2011. ( Id. ).

On January 20, 2011, the Office of the Chief Counsel (" OCC" ) filed additional charges of removability under section 237(a)(2)(E)(ii)[4] of the INA due to the protection from abuse charge. ( Id., ¶ 6). On February 14, 2011, Petitioner was transferred from ICE custody to Philadelphia County on a writ. ( Id., ¶ 7). On February 15, 2011, Petitioner was scheduled for an immigration hearing, however, Petitioner's counsel appeared at the wrong immigration court. ( Id., ¶ 8). On February 17, 2011, the immigration court granted the OCC's motion to administratively close the proceeding because Petitioner was not in ICE custody. ( Id., ¶ 9).

On March 24, 2011, Petitioner returned to ICE custody from the custody of Philadelphia County. ( Id., ¶ 10). On April 19, 2011, upon motion to recalendar the case with the immigration court, an immigration hearing date was set for May 24, 2011. ( Id. ). On May 24, 2011, a hearing was held before the immigration court. ( Id., ¶ 12). Petitioner admitted to overstaying on his visa, but denied the allegation that he was convicted of committing two separate crimes of moral turpitude. ( Id. ). Upon the request of Petitioner's counsel, the case was adjourned until June 20, 2011. ( Id. ). On June 20, 2011, Petitioner's counsel argued that Bergen County, NJ, Court dismissed the charge of threatening to kill relating to Petitioner's May 26, 2000 conviction which ICE was using for the removability charge. ( Id., ¶ 13). The immigration court adjourned the proceedings until July 18, 2011. ( Id. ). ICE attempted to obtain the records from Bergen County, NJ, Court and ICE was informed that the conviction was sealed and that the judge would have to issue an order to unseal it in order for Bergen County to issue a disposition of the case. ( Id., ¶ 14).

On July 18, 2011, Petitioner appeared before the immigration court and for the first time alleged that he had an approved Form 1-130, alien relative visa application, filed by his brother in 1997. ( Id., ¶ 15). Petitioner argued that he was eligible to adjust his status to lawful permanent resident under 245(i) of the INA, however, he did not have proof of the alleged approved Form 1-130. ( Id. ). The immigration court adjourned the proceedings for Petitioner to obtain proof of the approved 1-130 and for ICE to obtain the Bergen County Court disposition for the immigration court. ( Id. ). On July 28, 2011, Petitioner's counsel requested an adjournment in the immigration court due to a scheduling conflict

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and the hearing was reset for September 20, 2011. ( Id., ¶ 16). The OCC did not receive proof of the approved 1-130, therefore, the OCC made inquiry to the United States Citizenship and Immigration Services (CIS) to see if Petitioner or anyone filed an 1-130 on his behalf. ( Id., ¶ 17). CIS did not have a record of the 1-130 filing in Philadelphia or New York. ( Id., ¶ 18).

Upon motion by Petitioner's counsel, the immigration court reset the hearing date to October 25, 2011. ( Id. ¶ 19). For an unknown reason, the immigration court again reset the hearing for November 29, 2011. ( Id. ΒΆ 19). On November 18, 2011, Petitioner was released from ICE ...


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