Opinion
C.A. No. 04-2529.
November 2, 2004
MEMORANDUM OPINION AND ORDER
Josue Joseph brought this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Joseph is a Haitian national being detained by the Bureau of Immigration and Customs Enforcement (BICE) at the Montgomery County Correctional Facility. Joseph alleges he is being detained in violation of the Supreme Court decision in Zadvydas v. Davis, 533 U.S. 678 (2001). The government has responded to the petition, and has provided the court with Joseph's immigration records. For the reasons which follow, we deny the petition.
The record demonstrates that Joseph entered the United States on January 22, 1992 and overstayed his non-immigrant visa. On August 13, 1996 he was convicted in Queens, New York of robbery in the second degree. On January 6, 1998, he was convicted in Queens, New York of robbery in the first degree. On March 4, 1998, BICE initiated removal proceedings against him on the ground that he was an alien convicted of an aggravated felony. On May 13, 1998, an immigration judge ordered him removed. Joseph waived his right to appeal that decision. He entered the custody of BICE on November 28, 2003, upon completion of his criminal sentence. On January 7, 2004, BICE made a formal request of the Haitian consulate for issuance of travel documents.
On May 24, 2004, BICE conducted a custodyreview, recommending that Joseph continue to be held in custody until his removal because he was a threat to public safety and constituted a flight risk. That recommendation was accepted on June 8, 2004. On July 29, 2004, a further custody review was completed, again determining that Joseph should remain in custody, as he was expected to be removed to Haiti in the foreseeable future. By letter of October 21, 2004, the government informs us that Joseph is scheduled for removal in the next six to eight weeks.
In Zadvydas, the Supreme Court limited the period that a resident alien could be detained pending removal to a length of time reasonably necessary to bring about the actual removal of the resident alien. The Court recognized six months as a presumptively reasonable time of post-removal-period detention for resident aliens, thought the time may be extended if there is a significant likelihood of removal in the foreseeable future. Id. at 699-702.
Based on the record presented, we find there is a significant likelihood that Joseph will be removed within the next two months. Given the fact that he is a danger to the community and a flight risk, we find no violation of Joseph's rights in BICE's continuing to hold him in custody until his removal from the United States.
Should Joseph's removal not take place within the time period suggested by the government, he may seek leave to reopen these proceedings.
ORDER
The petition of Josue Joseph for writ of habeas corpus is DENIED.A certificate of appealability is DENIED.
IT IS SO ORDERED.