Alvarado v. Gillis

• Docket Number: 22-cv-10082
• Decision Date: 03 August 2023
• Parties: PALACIOS ALVARADO, Petitioner, v. SHAWN GILLIS, et. al., Respondents.
• Court: U.S. District Court — Southern District of New York

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PALACIOS ALVARADO, Petitioner,
v.
SHAWN GILLIS, et. al., Respondents.

No. 22-cv-10082

United States District Court, S.D. New York

August 3, 2023

TO: HON. JENNIFER L. ROCHON, United States District Judge.

REPORT AND RECOMMENDATION ON HABEAS PETITION

KATHARINE H. PARKER, United States Magistrate Judge

Petitioner Lucas Palacios Alvarado brings this habeas action pursuant to 28 U.S.C. § 2241 seeking release from immigration custody. The government opposes the petition but argues as a threshold matter that this action must be transferred to the Western District of Louisiana because this Court lacks jurisdiction over the petition. For the reasons set forth below, I agree that this Court lacks jurisdiction over the petition, but I find that the proper venue is the Southern District of Mississippi, and I respectfully recommend that this action be transferred to the Southern District of Mississippi.

BACKGROUND

Alvarado is a native and citizen of Honduras. (Pet. ¶ 16.) On or about April 30, 2014, he entered the United States. (Id. at ¶ 19.) On May 1, 2014, he was designated an Unaccompanied Alien Child and placed in the custody of the Office of Refugee Resettlement (“ORR”) of the U.S. Department of Health and Human Services. (Opp. 3.) On May 13, 2014, he was released from ORR custody to the custody of his father, who resided in New York. (Id.)

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Because he was aging out of ORR jurisdiction, on September 4, 2014, one day before he turned 18 years old, Alvarado requested asylum and related relief by filing a Form I-589 with U.S. Citizen and Immigration Services (“USCIS”). On November 6, 2014, an asylum officer interviewed Alvarado and later determined that he was not eligible for asylum. (Id.) Alvarado's asylum application was then referred to an immigration judge. Alvarado was not detained at that time and continued living in New York.

On September 16, 2019, the Nassau County Police Department (“NCPD”) arrested and charged Alvarado with possessing cocaine in violation of New York Penal Law (“NYPL”) § 220.06(05). On November 19, 2019, Alvarado pleaded guilty to one count of disorderly conduct in violation of NYPL § 240.20. (Id.)

Less than a year later, on May 16, 2020, NCPD again arrested Alvarado, this time for driving while intoxicated and assault causing injury, in violation of NYPL §§ 120.00(02) and 120.20, and New York Vehicle and Traffic Law (“VTL”) § 1192(03). (Id.) According to Alvarado, after visiting with friends and drinking “a couple of beers,” he drove a friend home and while driving “momentarily closed and then reopened his eyes” and “hit the car ahead of him in the rear.” (Pet ¶ 23.) A four-year-old child in the back seat of that car sustained a leg fracture in the accident. (Id.) Alvarado pleaded guilty to one count of assault in the third degree in violation of NYPL § 120.00(02) and one count of driving while intoxicated in violation of VTL § 1192(02). He was sentenced to 30 days in jail, three years of probation, alcohol treatment, and payment of monetary fines. His jail time commenced on August 11, 2021. (Opp. 3-4.)

On August 20, 2021, after Alvarado was released from jail, U.S. Immigration and Customs Enforcement (“ICE”) officers arrested Alvarado and served him with a notice of

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custody determination, notifying him that he would be detained pending his removal proceedings because ICE deemed him a danger to the community. He was then placed in Orange County Correctional Facility in New York. (Id. at 4.) ICE advised Alvarado that he could seek a review of ICE's custody determination before an immigration judge, which Alvarado did.

On February 14, 2022, the immigration judge denied Alvarado's request for asylum relief and withholding of removal. (Pet. Ex. B.) Alvarado appealed that decision to the Board of Immigration Appeals (“BIA”). Additionally, the immigration judge held a bond hearing but denied bond, finding that Alvarado was a danger to the community and posed a flight risk. Alvarado also appealed that decision.

On July 25, 2022, ICE transferred Alvarado from Orange County Correctional Facility to Adams County Detention Center in Natchez, Mississippi. The following day, on July 26,...