The opinion of the court was delivered by: Hon. Freda L. Wolfson
Sunil Soodoo, then confined at the Monmouth County Jail in Freehold, New Jersey, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging his detention in the custody of the Department of Homeland Security ("DHS"). Respondents filed an Answer seeking dismissal of the Petition, together with the declarations of counsel and Deportation Officer Waveney L. Boyd, and several exhibits. Having thoroughly examined the parties' submissions and considered their arguments, this Court will dismiss the Petition without to the filing of another petition (in the district of confinement) in the event that the Court of Appeals for the Second Circuit denies his petition for review, DHS fails to remove Petitioner within the presumptively reasonable six-month period, and Petitioner shows that his removal is not reasonably foreseeable.
Sunil Soodoo, a native and citizen of Guyana, South America, challenges his detention in the custody of DHS pending a ruling by the Second Circuit on his petition for review of the Board of Immigration Appeals' ("BIA") decision affirming the Immigration Judge's order of removal. Soodoo was admitted to the United States as a lawful permanent resident on May 1, 1990. On January 25, 1993, Soodoo was convicted of grand larceny in the fourth-degree in a New York state court and sentenced to a one to three-year term of imprisonment. On March 2, 2005, he was convicted of unlawful possession of marijuana in violation of section 221.05 of the New York Penal Law. DHS officials took Petitioner into custody on May 21, 2007 (presumably upon his release from state prison on the marijuana conviction), in accordance with an Immigration Detainer lodged on December 15, 2006, at Nassau County Correctional Center.*fn1
On March 27, 2008, DHS served Petitioner with a Notice to Appear, charging him with being a removable alien under sections 237(a)(2)(A)(i) based on conviction of a crime involving moral turpitude committed within five years after admission for which a sentence of one year or longer may be imposed, and 237(A)(2)(A)(iii) based on conviction of an aggravated felony, a law relating to a theft or burglary offense for which the term of imprisonment of at least one year was imposed, of the Immigration and Nationality Act ("INA"). Officials also served a Notice of Custody Determination in which the Supervisory Deportation Officer determined on March 19, 2008, that pending a final determination by the Immigration Judge and in the event removal is ordered, Petitioner would be detained pursuant to 8 U.S.C. § 1226; the notice indicates that on March 27, 2008, Petitioner received the notice and requested a re-determination of the custody decision by an Immigration Judge. (Docket Entry #9-3, p. 12.) An Immigration Judge appears to have subsequently affirmed Petitioner's detention pursuant to 8 U.S.C. § 1226. (Docket Entry #9-3, p. 15.) On July 10, 2009, Soodoo was served with additional charges warranting his being taken into custody and removed under section 237(a)(2)(B)(i) of the INA, i.e., conviction of a violation of any law relating to a controlled substance, other than a single offense involving possession for one's own use of 30 grams or less of marijuana.
In various appearances before Immigration Judge Alan Page, Petitioner conceded his removability on the charges in the notice to appear, as amended (docket entry #9-3, pp. 15-16), and applied for § 212(c) relief, asylum, and withholding of removal pursuant to § 241(b)(3)(A) and Article 3 of the Convention Against Torture. On September 30, 2009, Immigration Judge Page denied Petitioner's requests for relief and ordered his removal on the basis of the charges in the Notice to Appear, as amended. (Docket Entry #9-3, pp. 14-29.) Petitioner appealed to the BIA. On January 29, 2010, the BIA affirmed the Immigration Judge's decision in a two-page opinion. (Docket Entry #9-3, pp. 33-34.)
On February 4, 2010, Petitioner filed a petition for review of the January 29, 2010, decision of the BIA, together with a motion for stay of removal. See Soodoo v. Holder, C.A. No. 10-0445 (2d Cir. docketed Feb. 4, 2010). On March 10, 2010, Petitioner filed an amended petition for review and a motion to proceed in forma pauperis. On August 16, 2010, DHS filed a brief. According to the docket, the Second Circuit has yet to rule on the stay and the merits of the petition for review. On September 3, 2010, Petitioner filed a second petition for review and motion for a stay in the Second Circuit, which were docketed in Soodoo v. Holder, C.A. 10-3551 (2d Cir. docketed Sept. 3. 2010). On September 17, 2010, the government filed a motion to consolidate this matter with the first case. Both cases are pending before the Second Circuit.
In the meantime, on April 19, 2010, Field Office Director Christopher Shanahan issued a decision of custody review which continued Soodoo's detention pending adjudication of the petition for review by the Second Circuit. (Docket Entry #9-3, p. 36.) The custody review decision states that "[t]here is a stay of removal in effect which precludes ICE [Immigration and Customs Enforcement] from effecting your removal while the PFR is being adjudicated." *fn2 (Id.) The decision further states that on "February 4, 2010, a travel document present package was completed and sent to the Embassy of Guyana in Washington, DC requesting their assistance in the issuance of a travel document. A travel document was received on February 19, 2010 and is still valid." (Id.)
Petitioner executed the § 2241 Petition (presently before this Court) on December 17, 2009. The Clerk received and filed it on December 28, 2009. Petitioner thereafter filed an Amended Petition. Petitioner contends that his indefinite detention is not statutorily authorized under Zadvydas v. Davis, 533 U.S. 678 (2001), and violates procedural and substantive due process. This Court ordered the government to file an answer and copies of all relevant documents. On May 18, 2010, DHS filed an Answer, together with declarations and exhibits, and Petitioner filed letters in November and December 2010.
Under 28 U.S.C. § 2241(c), habeas jurisdiction "shall not extend to a ...