The opinion of the court was delivered by: Sandra J. Feuerstein United States District Judge
On June 26, 2008, petitioner filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging (1) a removal order of an Immigration Judge dated June 23, 2008, and (2) his conviction and sentence in the United States District Court for the Western District of Texas in August 2005 for illegal re-entry. By order dated July 9, 2008, the branches of the petition challenging the removal order and seeking a stay of petitioner's removal to El Salvador were, in effect, severed and transferred to the United States Court of Appeals for the Second Circuit pursuant to the REAL ID Act of 2005, 8 U.S.C. § 1252. Petitioner now seeks his release from custody on bail or recognizance. For the reasons set forth herein, the proceeding is transferred to the United States District Court for the District of New Jersey pursuant to 28 U.S.C. § 1631.
The following facts were taken from the petition and do not constitute findings of fact by the Court:
Petitioner is a citizen of El Salvador who came to the United States, "without inspection," in 1987 and resided in Central Islip, New York thereafter. (Petition [Pet.], ¶ 11). On August 29, 1995 petitioner was convicted in New York State Supreme Court, County of Suffolk of rape in the third degree, for which he was sentenced to a determinate term of imprisonment of thirty (30) days to be followed by a period of five (5) years probation. (Pet., ¶ 12). On or about April 5, 2000, Judge Alan Vomacka ordered that petitioner be removed from the United States. (Pet., ¶ 21). On or about March 19, 2005, petitioner was deported to El Salvador. (Pet., ¶ 12).
On August 12, 2005, petitioner illegally re-entered the United States, purportedly "in flight and fear for his life," after he witnessed an alleged political assassination and was identified and shot at by the assassins. (Pet., ¶ 13). On that same date, petitioner was taken into custody of the Immigration and Customs Enforcement (ICE) in El Paso, Texas based upon his illegal re-entry and was served with a "Notice of Intent/Decision to Reinstate Prior Order," advising him that, in accordance with Section 241(a)(5) of the Immigration and Nationality Act (INA) and 8 C.F.R. § 241.8, the Attorney General intended to reinstate the prior order of removal issued by Judge Vomacka.*fn1 (Pet., ¶ 15, Ex. C).
On December 8, 2005, petitioner was convicted in the United States District Court for the Western District of Texas, El Paso Division, upon his plea of guilty, of illegal re-entry into the United States in violation of 8 U.S.C. § 1326. (Pet., ¶ 16, Ex. F). On February 27, 2006, petitioner was sentenced to the custody of the United States Bureau of Prisons for a determinate term of imprisonment of thirty-seven (37) months and to a term of non-reporting supervised release of three (3) years. (Pet., ¶ 16, Ex. F). Petitioner was released on April 16, 2008 into the custody of the United States Department of Homeland Security (DHS) pursuant to a detainer. (Pet., ¶ 17). Petitioner has remained in DHS custody since that date pursuant to 8 U.S.C. § 1231(a)(2), which authorizes the detention of aliens awaiting removal. (Pet., ¶ 22).
On June 2, 2008, at petitioner's request, a Reasonable Fair Hearing (RFH) was held on petitioner's application for protection from removal to El Salvador at the Newark, New Jersey Immigration Court. (Pet., ¶ 18, Ex. F). By decision dated June 4, 2008, Immigration Officer (IO) James Hutchinson denied petitioner's request for withholding or deferral of removal, finding that petitioner was not able to establish that he would have a reasonable fear of persecution or torture if he were to return to El Salvador. (Pet., ¶ 19, Ex. F).
Thereafter, a hearing was held on June 18, 2008, at petitioner's request, before Immigration Judge Margaret Reichenberg at the Newark, New Jersey Immigration Court. (Pet., ¶ 20). Judge Reichenberg affirmed the IO's decision denying petitioner's application for protection from removal on the basis that petitioner "has not established a reasonable possibility that he/she would be persecuted on the basis of * * * his/her political opinion, or a reasonable possibility that he/she would be tortured in the country of removal," and ordered that petitioner be returned to DHS custody for removal from the United States. (Pet., Ex. A).
On June 26, 2008, petitioner filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and sought a stay of his removal from the United States pending determination of his claims. Petitioner claims that his continued detention and removal contravenes the Treaty and Convention on Torture and deprives him of substantive and procedural due process, and that the denial of his request for a RFH in August 2005 deprived him of due process. (Pet., ¶¶ 48-54). Petitioner seeks immediate release from custody, an injunction enjoining his further detention and removal, and attorney's fees and costs.
By order dated July 9, 2008, the branches of petitioner's petition seeking review of the removal order and a stay of his removal to El Salvador were transferred to the United States Court of Appeals for the Second Circuit pursuant to 8 U.S.C. § 1252, which divests this Court of jurisdiction over those claims. Thus, only ...