Funes v. Searls
| Decision Date | 23 April 2020 |
| Docket Number | 19-CV-6332 CJS |
| Parties | MARCO ANTONIO RAMOS FUNES, aka MARCO ANTONIO RAMOS FUNEZ, aka MARCO ANTONIO RAMOS, aka MARCO RAMOS, aka MARCOS RAMOS, Petitioner, v. JEFFREY SEARLS, Field Office Director Buffalo Federal Detention Facility ("BFDF"), Respondent. |
| Court | U.S. District Court — Western District of New York |
Proceeding pro se, Marco Antonio Ramos Funes ("Petitioner") (A 019-450-581) commenced this habeas proceeding on May 6, 2019, pursuant to 28 U.S.C. § 2241 ("Section 2241") against Respondent ("Respondent" or "the Government") challenging his continued detention in the custody of the United States Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE") pending the completion of removal proceedings against him. For the reasons discussed below, therequest for a writ of habeas corpus is denied.
Unless otherwise noted, the facts as set forth below are taken from the petition and administrative record in this action; the docket in a related case, Ramos Funez v. Sessions, 18-CV-6413 MAT;2 and the docket from Petitioner's pending appeal before the United States Court of Appeals for the Second Circuit, case number 19-2318.
Petitioner is a native and citizen of Honduras. On December 12, 1970, when Petitioner was approximately forty days old, his parents brought him to the United States. Petitioner subsequently resided in the United States as a Lawful Permanent Resident ("LPR"). In 1979, Petitioner's mother became a naturalized U.S. citizen, but Petitioner and his father remained LPRs.
In 2005, Petitioner was convicted, in the District Court of Nassau County, New York, of Sexual Abuse in the Second Degree in violation of NYPL § 130.60.3 For this conviction, Petitioner received a sentence of ten months in jail.4
Sometime prior to September 4, 2007, Petitioner left the United States and traveled to Honduras. The record does not state how long Petitioner remained outsideof the United States, but there is no indication that he was gone for an extended period. On September 4, 2007, Plaintiff returned to the United States via a flight from Honduras to Miami International Airport. At the airport, U.S. Customs and Border Patrol ("CBP") referred Petitioner for secondary inspection, to verify his residence and to determine his admissibility.5 During the secondary inspection, CBP determined that Plaintiff had been convicted of Sexual Abuse in violation of NYPL § 130.60. Because of that, CBP initially decided to detain Petitioner, referring to his situation as "Section 240 case with mandatory detention due to the subject's arrest and conviction."6 However, based upon Petitioner's statement that he "might be a U.S. citizen" due to derivative citizenship through his mother, CBP determined that further investigation was required.7 Consequently CBP in Miami referred the matter to the Department of Homeland Security ("DHS") at John F. Kennedy International Airport ("JFK") in New York, near Plaintiff's residence, for "further determination of [Petitioner's] immigration status andfinal admissibility."8 CBP further issued Petitioner an "Order to Appear Deferred Inspection" and directed him to report to DHS at JFK to complete the inspection and investigation.9 However, Petitioner never reported to DHS in New York as directed.10
In 2010, Petitioner was convicted in New York State Supreme Court, New York County, of Grand Larceny in the Second Degree in violation of NYPL § 155.40, for which he received a prison sentence of two-to-six years. Also, in 2010, Petitioner was convicted in New York State Supreme Court, Kings County, of Attempted Conspiracy in the Fourth Degree in violation of NYPL § 105.10, for which he received a sentence of one year's imprisonment.11 The combined term of imprisonment for these two convictions was a minimum of three years, and a maximum of seven years,12 and Petitioner served more than five years of that term.
On July 29, 2010, DHS issued a warrant ("Warrant for Arrest of Alien") for petitioner's arrest as an alien within the country in violation of the immigration laws.13 That same day, DHS issued a "Notice to Appear" to Petitioner in conjunction with "removal proceedings under section 240 of the Immigration and Nationality Act."14 The Notice to Appear recited that Plaintiff was an "arriving alien" who had been "paroled into the United States as a returning lawful permanent resident at or near Miami, FL on or about September 04, 2007."15 The Notice to Appear further indicated that because of Petitioner's conviction for sexual abuse, he was subject to removal from the United States pursuant to Section 212(a)(2)(A)(i)(I), 8 U.S.C § 1182(a)(2)(A)(i), of the Immigration and Nationality Act ("INA") as an alien convicted of crime of moral turpitude.16
On or about January 15, 2011, Petitioner filed an Application for Certificate of Citizenship (N-600) to U.S. Citizenship and Immigration Services ("USCIS"). The application maintained that Petitioner had derivative citizenship through his mother. However, on January 30, 2012, USCIS denied the application, finding that Petitioner did not meet the statutory requirements for derivative citizenship.17
On January 7, 2013, an Immigration Judge ("IJ") administratively closed Petitioner's removal action because Petitioner was in state custody, serving his prison sentences.
On August 31, 2016, as Petitioner was nearing his release from state prison, DHS moved the Immigration Court to re-calendar Petitioner's removal proceedings and change venue to the Ulster Correctional Facility in Napanoch, New York, where he was incarcerated. On September 20, 2016, both motions were granted, and Petitioner's removal proceedings were re-opened.
On January 11, 2017, DHS served Petitioner with additional charges of inadmissibility/deportability. Specifically, in addition to charging Petitioner as an alien convicted of a crime of moral turpitude (sex abuse), DHS charged him with being subject to removal pursuant to INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B), as an alien who had been convicted of two or more offenses for which the aggregate sentences to confinement actually imposed were five years or more.
On February 22, 2017, DHS took Petitioner into custody upon his release from state prison. At that time, a DHS Supervisory Detention and Deportation Officer ("SDDO") determined that Petitioner would be detained, pursuant to INA § 236,"pending a final administrative determination."18
Following a hearing on October 24, 2017,19 an IJ concluded that he lacked jurisdiction to set bond because Petitioner was classified as an arriving alien.20 Petitioner appealed the decision to the Board of Immigration Appeals ("BIA").
On March 12, 2018, BIA dismissed the appeal, finding that the IJ had properly concluded that he lacked jurisdiction to set bond for Petitioner. On this point, BIA stated:
We find no error in the lmmigration Judge's determination. The regulation relating to detention and release of aliens removes from Immigration Judges the authority to redetermine the custody of "[a]rriving aliens in removal proceedings." 8 C.F.R. § 1003.19(h)(2)(i)(B). Moreover, unlike the classes of aliens referred to in paragraphs (C), (D), and (E) of 8 C.F.R. § 1003.19(h)(2)(i), who likewise fall outside the Immigration Judge's custody jurisdiction, the regulation does not confer upon Immigration Judges even the limited jurisdiction to entertain the request of an alien, who has been designated by the DHS as an arriving alien, for a determination by an Immigration Judge of whether or not the alien is "properly included within that paragraph." 8 C.F.R § 1003.19(h)(2)(ii).
ECF No. 4-1 at p. 11 (footnote and citations omitted). In sum, BIA indicated that whilethe IJ had held a nominal "bond hearing" pursuant to Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015) ("Lora"), the IJ had properly concluded that he lacked jurisdiction to consider Petitioner's custody status.21
Meanwhile, essentially no progress had been made in Petitioner's removal proceedings since February 2017, when he was taken into DHS custody. Instead, the matter had been adjourned repeatedly at Petitioner's request, to allow him time to prepare and to retain an attorney.22 During that time, Petitioner retained three different attorneys, all of whom eventually withdrew from representing Petitioner.23 One of those attorneys indicated, when moving to withdraw, that Petitioner was being "advised by other people," and that the attorney felt he had no "strategic input" into Petitioner's case.24
On April 13, 2018, the IJ determined that no good cause existed for any further continuances of the removal proceedings. The IJ observed that Petitioner's claim of derivative citizenship had been denied by USCIS, and that it did not appear Petitioner had appealed that ruling, except insofar as he had challenged the constitutionality of the derivative citizenship statute. The IJ further determined that Petitioner had withdrawn his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The IJ made that determination after Petitioner declined, at the hearing, to put forward any evidence concerning those claims. Finally, the IJ ordered Petitioner removed from the United States pursuant to INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an arriving alien who had been convicted of a crime of moral turpitude; and pursuant to INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B), as an alien who has been convicted of two or more offenses for which the aggregate sentences to confinement actually imposed were five years or more.
Petitioner appealed the IJ's decision to the BIA, raising several grounds for reversal. By decision dated December 7, 2018, BIA dismissed Petitioner's claim challenging the constitutionality of the derivative citizenship statute, INA § 320 and former INA § 321, 8 U.S.C. §§ 1431, 1432. However, the BIA remanded the matter to...
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