Opinion
22-CV-1262 (AT) (BCM)
01-25-2023
ABEL ANTONIO PINA MOROCHO, Petitioner, v. ALEJANDRO MAYORKAS, Secretary of the Department of Homeland Security, Respondent.
REPORT AND RECOMMENDATION TO THE HON. ANALISA TORRES
Barbara Moses, United States Magistrate Judge
Petitioner Abel Antonio Pina Morocho, proceeding pro se and in forma pauperis, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is a citizen of Ecuador who is currently serving a five- to fifteen-year sentence at Fishkill Correctional Facility (Fishkill) following a conviction for aggravated vehicular homicide. See Pet. (Dkt. 2) ¶¶ 4-6, 18. After Pina Morocho was sentenced, the U.S. Department of Homeland Security (DHS) initiated and concluded removal proceedings against him, obtaining an order of removal that became final on January 20, 2021. Petitioner filed this action more than a year later, on February 15, 2022. Citing Zadvydas v. Davis, 533 U.S. 678 (2001), petitioner appears to contend that he has been detained for an unreasonably prolonged period after his order of removal became final, Pet. ¶¶ 11-15, and, for that reason, should be "discharged from his unconstitutional immigration confinement." Id. at 8. Additionally, petitioner asserts that the immigration judge (IJ) who issued his order of removal failed to consider all of the relevant evidence, id. ¶¶ 18-20, entitling him to "cancellation of removal." Id. at 8.
Now before me for report and recommendation (see Dkt. 8) is the motion of respondent Alejandro Mayorkas, Secretary of DHS, to dismiss the Petition pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (Dkt. 12.) The motion should be granted. As discussed in more detail below, this Court plainly lacks jurisdiction to review the order of removal or grant cancellation of removal. Moreover, although a federal district court may entertain a § 2241 petition alleging that a noncitizen has been in post-removal DHS detention for an unreasonable period of time, in this case petitioner's post-removal detention period has not yet commenced, because he is still serving his criminal sentence. Consequently, the portion of the Petition challenging his "immigration confinement" fails to state any constitutional claim.
I. BACKGROUND
Petitioner came to the United States at the age of 22. Pet. ¶ 18. He entered the country "without inspection, admission, or parole." Declaration of Supervisory Detention and Deportation Officer Scott J. North (North Decl.) (Dkt. 13) ¶ 4. On September 17, 2017, petitioner was arrested in New York City and charged with, inter alia, vehicular assault in the second degree in violation of N.Y. Penal Law (NYPL) § 120.03(1). Id. ¶ 5. On the same day, he was taken into the custody of the New York City Department of Corrections (NYCDOC) and held at Rikers Island as a pretrial detainee. Id. ¶ 6. On September 28, 2017, U.S. Immigration and Customs Enforcement (ICE), a component of DHS, "lodged a detainer with NYCDOC." Id. ¶ 7. An ICE detainer serves as a notice to jail and prison officials "that [they] should communicate with ICE before [a detainee's] scheduled release so that ICE can take [the detainee] into custody for immigration purposes." Hernandez v. I.C.E., 165 F.Supp.3d 715, 717 (N.D. Ill. 2016) (citing 8 U.S.C. § 1357(d)).
On October 10, 2017, petitioner was arraigned on an indictment charging him with multiple felonies, including "one count of murder (intentional) in violation of NYPL § 125.25(1); one count of aggravated vehicular homicide in violation of NYPL § 125.14(1); one count of vehicular manslaughter in the first degree in violation of NYPL § 125.13(1)," and numerous related offenses. North Decl. ¶ 8. On June 27, 2018, petitioner pled guilty to aggravated vehicular homicide, in violation of NYPL § 125.14(1), and was sentenced to five to 15 years in prison. Id. ¶ 9 & Ex. 3; Pet. ¶¶ 4-5.
On July 5, 2018, NYCDOC transferred petitioner to the custody of the New York State Department of Corrections and Community Supervision (DOCCS), which assigned him to Fishkill to serve his sentence. North Decl. ¶ 10. On September 19, 2018, ICE lodged a detainer with DOCCS. Id. ¶ 11.
On November 7, 2018, ICE served petitioner with a Notice to Appear (NTA), which charged him as removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), as a noncitizen who was present in the U.S. without having been admitted or paroled. North Decl. ¶ 12 & Ex. 1 (NTA). On December 20, 2018, petitioner appeared remotely at a master calendar hearing before an IJ, id. ¶ 15, and on January 31, 2019, he appeared again, conceded service of the NTA, and admitted some but not all of the charges in the NTA. Id. ¶ 16. At that hearing, the IJ sustained the charge in the NTA, and adjourned the hearing to allow petitioner to "file all applications for relief from removal," id., which petitioner did. Id. ¶ 17. After numerous adjournments, some of them due to the COVID-19 pandemic, see id. ¶¶ 17-23, petitioner and his counsel appeared remotely for an individual hearing on December 21, 2020, id. ¶ 18, at which the IJ denied petitioner's application for relief from removal and ordered petitioner removed from the United States to Ecuador. North Decl. ¶ 24 & Ex. 2 (Order of Removal). Pina Morocho's deadline for appealing the Order of Removal to the Bureau of Immigration Appeals (BIA) was January 20, 2021. Id. ¶ 24. No appeal was filed. Id.
Plaintiff's state court appeal of his criminal conviction was unsuccessful. See People v. Morocho, 184 A.D.3d 876, 877, 124 N.Y.S.3d 241 (2nd Dep't 2020) (Mem), appeal denied, 35 N.Y.3d 1096, 155 N.E.3d 800 (Table) (2020). As of the filing of this action, his motion to set aside his conviction, filed pursuant to N.Y. Crim. Proc. Law § 440, remained pending. Pet. at 3 n.1.
Petitioner first became eligible for parole on September 6, 2022, see North Decl. ¶ 25 & Ex. 3, but parole was denied. See DOCCS, Incarcerated Lookup: DIN 18R1595 , https://nysdoccslookup.doccs.ny.gov/ (last visited January 25, 2023). Petitioner's next parole hearing will not be until at least May 2024. Id. Petitioner will be eligible for conditional release on September 6, 2027, and will have served his full sentence on September 6, 2032. Id.
In this Court, petitioner seeks (i) a discharge from his "unconstitutional immigration confinement," (ii) cancellation of removal ("and/or de novo review of removal proceedings"), and (iii) an order requiring production of the "transcript of the entire immigration proceedings developed in the immigration court[.]" Pet at 8.
In his motion to dismiss, filed on June 8, 2022, respondent argues that this Court lacks subject matter jurisdiction to consider petitioner's challenge to his current physical confinement because petitioner is not in ICE custody at all, Resp. Mem. (Dkt. 14) at 11-13, and that any inquiry into the reasonableness of his future detention by ICE, pursuant to his Order of Removal, would be "premature." Id. at 13-15. Respondent further contends that only the Court of Appeals, not this Court, could review the Order of Removal, id. at 16-19, and adds that the proper forum for requesting transcripts of immigration proceedings is immigration court. Id. at 19-20.
On July 27, 2022, petitioner filed a memorandum in opposition to the motion (Pet. Opp. Mem.) (Dkt. 19), and on August 11, 2022, respondent filed a reply brief (Dkt. 20). Thereafter, on August 23, 2022, petitioner filed a sur-reply letter-brief (Dkt. 22).
II. LEGAL STANDARDS
"Federal courts are courts of limited jurisdiction," possessing "only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). If the district court "lacks the statutory or constitutional power to adjudicate" a case, it must be dismissed for lack of subject matter jurisdiction. Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.a.r.l., 790 F.3d 411, 416-17 (2d Cir. 2015) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); see also Durant, Nichols, Houston, Hodgson & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) ("It is a fundamental precept that federal courts are courts of limited jurisdiction and lack the power to disregard such limits as have been imposed by the Constitution or Congress.") (citation omitted); Fed.R.Civ.P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). "Customarily," therefore, "a federal court first resolves any doubts about its jurisdiction over the subject matter of a case before reaching the merits or otherwise disposing of the case." Cantor Fitzgerald, L.P. v. Peaslee, 88 F.3d 152, 155 (2d Cir. 1996).
In resolving a motion to dismiss for lack of subject matter jurisdiction, made pursuant to Rule 12(b)(1), the district court "must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction." Marino v. Coach, Inc., 264 F.Supp.3d 558, 564 (S.D.N.Y. 2017) (quoting Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)). However, "where jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits." APWU v. Potter, 343 F.3d 619, 627 (quoting LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999)); accord Ray Legal Consulting Grp. v. Gray, 37 F.Supp.3d 689, 696 (S.D.N.Y. 2014).
When considering a Rule 12(b)(6) motion, the trial court must "accept as true all factual statements alleged" in the pleading "and draw all reasonable inferences in favor of the nonmoving party." McCarthy v. Dunn & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007)). However, those factual allegations must "be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted) (quoting Twombly, 550 U.S. at 555, 557).
In addition to the facts alleged in the petition itself, a court faced with a Rule 12(b)(6) motion may consider any matter of which it may take judicial notice, including the proceedings of other courts of record - "not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings." Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991); see also Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 426 (2d Cir. 2008) ("Matters judicially noticed by the District Court are not considered matters outside the pleadings.").
As relevant here, this Court may take judicial notice of petitioner's immigration proceedings. See Gjidija v. United States, 2019 WL 2615438, at *7 (S.D.N.Y. June 26, 2019) (taking judicial notice of decisions of IJ and BIA), report and recommendation adopted, 2019 WL 3889854 (S.D.N.Y. Aug. 19, 2019), aff'd, 848 Fed.Appx. 451 (2d Cir. 2021); Akran v. United States, 997 F.Supp.2d 197, 203 (E.D.N.Y. 2014) (district court may take judicial notice of "[c]ourt records in a pending, related immigration proceeding") (collecting cases), aff'd, 581 Fed.Appx. 46 (2d Cir. 2014). The Court may also take judicial notice of the inmate information contained in the DOCCS database. See, e.g., Kelsey v. Rutledge, 2022 WL 2110436, at *1 n.2 (S.D.N.Y. June 10, 2022) (taking judicial notice of plaintiff's criminal convictions as reported in DOCCS database); Williams v. Barometre, 2022 WL 903068, at *3 n.5 (S.D.N.Y. Mar. 28, 2022) (taking judicial notice of plaintiff's date of incarceration as reported in the DOCCS database and collecting cases).
C. Pro Se Parties
Courts "afford a pro se litigant 'special solicitude' by interpreting a pleading filed pro se 'to raise the strongest claims that it suggests.'" Hardaway v. Hartford Pub. Works Dep't, 879 F.3d 486, 489 (2d Cir. 2018) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)); see also Matias v. Artuz, 8 Fed.Appx. 9, 11 (2d Cir. 2001) (construing a habeas petition and certificate of appealability liberally because "both documents were filed pro se"). A pro se litigant, however, "is not exempt 'from compliance with relevant rules of procedural and substantive law.'" Ajemian v. United States, 171 F.Supp.3d 206, 210 (S.D.N.Y. 2016) (quoting Boddie v. N.Y. State Div. of Parole, 285 F.Supp.2d 421, 426 (S.D.N.Y. 2003)).
D. Judicial Review of Final Orders of Removal
Pursuant to the REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231 (2005), judicial review of an order of removal may be had only in "the court of appeals for the judicial circuit in which the immigration judge completed the proceedings." 8 U.S.C. § 1252(b)(2). Such a petition is "the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter[.]" Id. § 1252(a)(5). Thus, "[d]istrict courts do not have jurisdiction over challenges to the legality of final orders of deportation, exclusion, and removal[.]" Matos v. Barr, 509 F.Supp.3d 3, 8 (W.D.N.Y. 2020) (citing Gittens v. Menifee, 428 F.3d 382, 384 (2d Cir. 2005)).
Section 106(c) of the REAL ID Act permits a district court to transfer an improperly-filed habeas petition, which seeks review of a final order of deportation, exclusion, or removal, to "the court of appeals for the circuit in which a petition for review [of that order] could have been properly filed." However, "[t]ransfer to the Court of Appeals is not permitted if the petition for review would be untimely." Sokolov v. Mayorkas, 2022 WL 2819445, at *4 (S.D.N.Y. July 18, 2022) (citing De Ping Wang v. Dep't of Homeland Sec., 484 F.3d 615, 617-18 (2d Cir. 2007)).
E. Habeas Challenges to DHS Custody
Pursuant to 8 U.S.C. § 1231(a)(1)(A), a noncitizen subject to a final order of removal must be removed from the United States within a period of 90 days. However, DHS "may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment." Id. § 1231(a)(4)(A); see also id. § 1228(a)(4)(A) ("[n]othing in this section shall be construed as requiring the [Secretary of DHS] to effect the removal of any alien sentenced to actual incarceration, before release from the penitentiary or correctional institution where such alien is confined"). Consequently, for a noncitizen who is detained pending his criminal trial or serving a criminal sentence, the 90-day removal period does not begin until "the date [he] is released from detention or confinement." Id. § 1231(a)(1)(B)(iii); see also Lovell v. I.N.S., 2003 WL 22282176, at *3 n.4 (E.D.N.Y. May 21, 2003) (for a criminally incarcerated noncitizen, the 90-day removal period begins when he is "released from incarceration for any criminal sentence he is serving").
During the 90-day removal period, the noncitizen must be detained. 8 U.S.C. § 1231(a)(2). If he "does not leave or is not removed within the removal period," he shall be subject to continued "supervision" after the 90-day period expires. Id. § 1231(a)(3). In addition, "certain classes of aliens, including inadmissible aliens and criminal aliens," may be detained "beyond the removal period." Wang v. Ashcroft, 320 F.3d 130, 145 (2d Cir. 2003) (citing 8 U.S.C. § 1231(a)(3), (6)).
In Zadvydas, the Supreme Court "was faced with the challenge of reconciling [§ 1231(a)(6)'s] apparent authorization of indefinite executive detention with the Due Process Clause of the Fifth Amendment." Wang, 320 F.3d at 146. In order to save the statute from unconstitutionality, the Court construed it "to contain an implicit 'reasonable time' limitation, the application of which is subject to federal-court review." Zadvydas, 533 U.S. at 682. Post-removal detention is "presumptively reasonable" for six months. Id. at 701. Thereafter, "once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing." Id. If it cannot, the noncitizen is entitled to a bond hearing, which may, in turn, result in his release from detention. Id.; see also Clark v. Martinez, 543 U.S. 371, 378 (2005) (after six months, "the alien is eligible for conditional release if he can demonstrate that there is 'no significant likelihood of removal in the reasonably foreseeable future'") (quoting Zadvydas, 533 U.S. at 701). This test "articulates the outer bounds of the Government's ability to detain aliens (other than those serving criminal sentences) without jeopardizing their due process rights." Wang, 320 F.3d at 146 (emphasis added).
A noncitizen who has been in post-removal detention under 8 U.S.C. § 1231 for more than six months may challenge his continued confinement pursuant to 28 U.S.C. § 2241, which gives federal district courts jurisdiction to grant a writ of habeas corpus to a detainee who is "in custody in violation of the Constitution or laws or treaties of the United States." Henderson v. I.N.S., 157 F.3d 106, 122 (2d Cir. 1998) (quoting § 2241); accord Zadvydas, 533 U.S. at 687 (holding that a § 2241 petition is an appropriate method for raising statutory and constitutional challenges to detention following an order of removal). The REAL ID Act, which bars district courts from reviewing orders of removal, does not affect the district court's jurisdiction over properly-filed § 2241 petitions raising claims under Zadvydas. Matos, 509 F.Supp.3d at 8 (quoting Zadvydas, 533 U.S. at 678).
III. DISCUSSION
A. This Court Cannot Review Petitioner's Order of Removal
Pina Morocho was ordered removed on December 21, 2020 by an IJ, North Decl. Ex. 2, but did not file an appeal with the BIA. North Decl. ¶ 24. The Order of Removal thus became final on the day that appeal was due, January 20, 2021. Id.; see also 8 U.S.C. § 1101(a)(47)(B) (an order of deportation becomes final upon a determination by the BIA affirming it, or upon "the expiration of the period in which the [noncitizen] is permitted to seek review of such order by the [BIA]"). Under the REAL ID Act, judicial review of that final order by this Court is wholly barred. See Sokolov, 2022 WL 2819445, at *3 (dismissing habeas petition seeking judicial review of a final order of removal and "cancellation of removal" for lack of subject matter jurisdiction because the REAL ID Act "stripped federal district courts of jurisdiction to review orders of removal or requests for a stay of removal"). Thus, insofar as Pina Morocho's Petition seeks judicial review of his Order of Removal and cancellation of removal, it must be dismissed for lack of subject matter jurisdiction.
As in Sokolov, 2022 WL 2819445, at *4, the Petition now before the Court is ineligible for transfer to the Second Circuit because it is time-barred. Pina Morocho was required to seek judicial review in the Court of Appeals "not later than 30 days after the date of the final order of removal," 8 U.S.C. § 1252(b)(1), that is, by February 19, 2021. Instead, he filed his Petition in this Court on February 15, 2022, more than one year after the date on which the Order of Removal became final. The REAL ID Act's thirty-day limitations period is jurisdictional and not subject to equitable tolling. Ruiz-Martinez v. Mukasey, 516 F.3d 102, 117-19 (2d Cir. 2008). Consequently, this Court cannot transfer the Petition and must instead dismiss it for lack of subject matter jurisdiction, insofar as it seeks cancellation of removal. De Ping Wang, 484 F.3d at 617-18.
Because this Court lacks subject matter jurisdiction to review petitioner's immigration proceedings, petitioner's request for an order requiring respondent to furnish the transcripts of those proceedings should also be denied. See Jackson v. Capra, 2015 WL 367085, at *7 (S.D.N.Y. Jan. 28, 2015) (denying request for records not relevant to habeas petition before the court), report and recommendation adopted, 2015 WL 1064900 (S.D.N.Y. Mar. 2, 2015).
B. Petitioner Has Not Stated a Claim for Relief from Immigration Detention
Insofar as the Petition challenges Pina Morocho's "immigration confinement" at Fishkill, Pet. at 8, it should be dismissed pursuant to Rule 12(b)(6) for failure to state a cognizable claim. Because petitioner is subject to an ICE detainer and a final order of removal, he is arguably in "immigration custody," which may be challenged in this Court pursuant to 28 U.S.C. § 2241, even though he is in the physical custody of the State of New York. See Simmonds v. I.N.S., 326 F.3d 351, 354-56 (2d Cir. 2003) (holding that a petitioner subject to a final order of removal, who was still serving his state criminal sentence subject to an immigration detainer, was "in INS custody for purposes of § 2241"). However, his post-removal detention period has not yet commenced, and will not commence until he is released from Fishkill. 8 U.S.C. §§ 1228(a)(4)(A), 1231(a)(4)(A).
In Simmonds, which was decided before the REAL ID Act became law, petitioner sought to "mount[ a] habeas challenge to [his] removal order." 326 F.3d at 360. The Court of Appeals construed the petition as challenging Simmonds's "subsequent custody" by INS (the predecessor to ICE), id., and ultimately dismissed the petition on ripeness grounds, since the actual date of his release by state authorities was unknown and likely distant. Id. at 361. Since then, several district courts within our Circuit have distinguished Simmonds - and dismissed habeas petitions for lack of subject matter jurisdiction - where, as here, a final order of removal had been issued but the petitioner was still serving his state criminal sentence, subject to an immigration detainer, and sought to challenge "his present physical confinement, not his eventual ICE confinement." Hoyte v. Holder, 2010 WL 6350756, at *4 (S.D.N.Y. Oct. 22, 2010) (recommending that the petition be "dismissed for lack of subject matter jurisdiction because Hoyte is not in the custody of federal immigration authorities"), report and recommendation adopted, 2011 WL 1143043 (S.D.N.Y. Mar. 25, 2011); see also Duamutef v. I.N.S., 2003 WL 21087984, at *3 (E.D.N.Y. May 14, 2003) (dismissing petition on jurisdictional grounds because Duamutef "is challenging his current confinement - by the state authorities"), aff'd on other grounds, 386 F.3d 172 (2d Cir. 2004). However, other district courts have followed Simmonds even where the petitioner is challenging his present physical confinement, see, e.g., Ferris v. I.N.S., 303 F.Supp.2d 103, 108 (D. Conn. 2004) ("This court has jurisdiction to hear Ferris' habeas corpus petition"); Bispham v. I.N.S., 2003 WL 21497198, at *1 (D. Conn. June 27, 2003) (ruling that court had subject matter jurisdiction over petitioner's challenge to his confinement under Zadvydas even though he was "still serving his Connecticut sentence"), and the Second Circuit has declined to resolve the "complicated question" whether a noncitizen who seeks to challenge his present physical confinement while still in state prison subject to an immigration detainer is "in INS custody" for jurisdictional purposes. Duamutef, 386 F.3d at 178. In two recent cases, Chief Judge Swain assumed that the district court had subject matter jurisdiction over the petitioners' challenges to their present physical confinement, and went on to reject those challenges on the merits rather than on jurisdictional grounds. See Sokolov, 2022 WL 2819445, at *2 n.3; Vigo v. Mayorkas, 2022 WL 1138044, at *2 (S.D.N.Y. Apr. 15, 2022), opinion vacated on other grounds on reconsideration, 2022 WL 4467631 (S.D.N.Y. Sept. 26, 2022), and appeal dismissed, 2022 WL 17176313 (2d Cir. Oct. 27, 2022). I recommend, respectfully, that this Court do the same.
Since petitioner's post-removal detention period has not yet commenced, it cannot have been so prolonged as to the violate the Due Process Clause. Consequently, Pina Morocho cannot state a viable constitutional claim under Zadvydas or its progeny, and the Petition should be dismissed. See Sokolov, 2022 WL 2819445, at *3-4 (denying habeas petition "insofar as Petitioner challenges his detention," because "Petitioner remains at Fishkill Correctional Facility serving the sentence for his state court conviction, and . . . has not yet been released from DOCCS custody for deportation or removal"); Vigo v. Mayorkas, 2022 WL 1138044, at *2, *4 (denying habeas petition "insofar as Petitioner challenges his detention," because so long as Petitioner remains at Fishkill and "has not been released from DOCCS' custody," he "does not provide any cognizable claim for relief").
C. No Leave to Amend Should be Granted
In his opposition memorandum, petitioner requests leave to amend the Petition to include a claim under People ex rel. Welikson v. Cronin, 202 A.D.3d 1437, 1438 158 N.Y.S.3d 924, 925 (4th Dep't 2022), which noted that "it is unlawful to retain a prisoner, who would otherwise be released, pursuant to an ICE detainer." Id. (citing People ex. rel. Wells v. DeMarco, 168 A.D.3d 31, 53, 88 N.Y.S.3d 518, 536 (2d Dep't 2018)). See Pet. Opp. Mem. at 1, 4. That rule, however, is squarely based on New York law, not the United States Constitution. See Wells, 168 A.D.3d at 53, 88 N.Y.S.3d at 536 ("The narrow issue in this case is whether New York law permits New York state and local law enforcement officers to effectuate civil immigration arrests, and not whether federal civil immigration officers have the authority to effectuate such arrests.").
Moreover, in both Welikson and Wells, the petitioners alleged that they were being held by state officials after the date on which they would otherwise have been released from criminal custody. See Welikson, 202 A.D.3d at 1438, 158 N.Y.S.3d at 925 (petitioner claimed that he was "unlawfully held beyond the date of his conditional release upon a request from [ICE] officials"); Wells, 168 A.D.3d at 41, 88 N.Y.S.3d at 528 (discussing policy under which state officials were asked to "maintain custody of the alien for up to 48 hours beyond the preexisting release date so that the DHS may assume custody") (emphases added). Here, petitioner has not been granted any release by state officials. He will not be eligible for parole until May 2024, and will not be eligible for conditional release until September 2027. See DOCCS, Incarcerated Lookup: DIN 18R1595 . Since he is still serving his state sentence - and would be required to do so even if there were no ICE detainer - amendment for the purpose of attempting to state a constitutional claim under Welikson and Wells would be futile.
The same is true with respect to petitioner's suggestion that he could state a claim for respondent's inaction, i.e., respondent's "refusal to expedite noncitizens to INS's detainer." Pet. Opp. Mem. at 2. As Chief Judge Swain explained in Sokolov, "until a noncitizen 'is released by the state, and the 90-day removal period specified in § 1231(a)(1)(A) is triggered, the pace at which the Attorney General proceeds to take [the noncitizen] into custody and execute the removal order is within his discretion and thus beyond mandamus or habeas review.'" 2022 WL 2819445, at *3 (quoting Duamutef, 386 F.3d at 180); see also 8 U.S.C. § 1231(a)(4)(D) (barring private right of action to compel the "release, removal, or consideration for release or removal" of any noncitizen).
In Sokolov, DOCCS had granted the petitioner "conditional parole for deportation only," but he remained in the physical custody of New York officials at Fishkill. 2022 WL 2819445, at *1-2. Pina Morocho does not allege, and the DOCCS database does not indicate, that he was ever granted this (or any) type of parole.
IV. CONCLUSION
For the foregoing reasons, I recommend, respectfully, that respondent's motion (Dkt. 12) be GRANTED. Insofar as the Petition seeks review of Pina Morocho's Order of Removal and related relief (i.e., production of transcripts of his immigration hearings), it should be DISMISSED for lack of subject matter jurisdiction. Insofar as it seeks to challenge his current confinement, it should be DISMISSED without leave to amend for failure to state any constitutional claim.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this report and recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any such objections shall be filed with the Clerk of the Court. Any request for an extension of time to file objections must be directed to the Hon. Analisa Torres, United States District Judge. Failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).