OPINION & ORDER Eddin Mauricio Marin Portillo petitions for a writ of habeas corpus, pursuant to 28 U.S.C. §2241. A noncitizen subject to a final order of removal, Portillo has been detained in Orange County Jail in Goshen, New York, since March 2, 2021. Portillo seeks release from detention pending resolution of a petition for review he has filed in the United States Court of Appeals for the Second Circuit, in which he challenges administrative determinations that he cannot claim to reasonably fear harm were he to return to his home country of Honduras. For the reasons below, the Court denies Portillo’s habeas petition. I. Background1 A. Immigration, Criminal, and Administrative Background Portillo is a citizen and national of Honduras. Pardo-Figueroa Decl. 3. On an unspecified date, Portillo entered the United States without inspection, admission, or parole. Id. 4. On April 23, 2007, Portillo was ordered removed by an immigration judge in Imperial, California. Id. 5. On May 9, 2007, Immigration and Customs Enforcement (“ICE”) removed Portillo to Honduras, pursuant to that order. Id. After his 2007 removal, Portillo again illegally reentered the United States at an unknown place and time. Id. 6. On March 27, 2016, in the Village of Port Chester, New York, Portillo was arrested and charged with third-degree burglary and possession of burglars’ tools, in violation of New York state law, in connection with incidents that occurred on February 19 and 23, 2015. Id. 7. On March 28, 2016, Portillo was charged with a different instance of third-degree burglary, in violation of New York state law, in connection with an incident that occurred November 15, 2015. Id. 8. On February 13, 2017, a grand jury indicted Portillo on the above charges, and on October 3, 2017, the separate indictments for the alleged crimes were consolidated under a single indictment number. Id.
7-8. On November 22, 2017, after Portillo failed to appear on the above charges, the Westchester County Court issued a bench warrant for his arrest. Id. 9. On January 8, 2018, in Port Chester, New York, ICE agents arrested and detained Portillo based on the earlier final removal order. Id. 10. On January 22, 2018, ICE obtained travel documents to effectuate Portillo’s removal to Honduras, and on January 31, 2018, ICE removed him there. Id. At an unknown date and place after his 2018 removal, Portillo again illegally reentered the United States. Id. 11. On September 20, 2019, Portillo was returned to Westchester County Court on the bench warrant that had issued based on the criminal burglary charges. Id.2 On December 17, 2019, Portillo pled guilty to third-degree burglary, and on October 20, 2020, was sentenced to a prison term of 16 months to four years in state prison. Id. 12. On March 2, 2021, Portillo completed his sentence. Id. 13. That same day, ICE took Portillo into custody and served him a Notice of Intent/Decision to Reinstate Prior Order. Id. Also on March 2, 2021, after Portillo claimed a fear of returning to Honduras, he was referred to an asylum officer from the United States Citizenship and Immigration Services (“USCIS”) for a reasonable fear interview. Id. On March 15, 2021, the asylum officer conducted that interview, and found that Portillo had not established a reasonable fear of harm should he be removed to Honduras. Id. 14. After Portillo requested that an immigration judge review that determination, on March 17, 2021, ICE referred the matter to the Varick Street Immigration Court in New York, New York. Id. 15. On April 5, 2021, after a video teleconference hearing, the immigration judge upheld the asylum officer’s negative reasonable fear determination and returned the case to ICE, to arrange for Portillo’s removal to Honduras. Id. 16. Shortly thereafter, ICE initiated removal plans for Portillo. Id. 17. On April 15 and 18, 2021, respectively, Portillo filed, in the United States Court of Appeals for the Second Circuit, (1) a petition for review of the determinations that he had not established reasonable fear and (2) a motion to stay removal. Id.; see Portillo v. Garland, No. 21-6228 (2d Cir.) Dkts. 4, 8. Consistent with the Government’s “forbearance policy,” ICE informally committed to holding off on removing Portillo until the Circuit ruled on the motion to stay removal. See Dkt. 7 (“Gov. Opp’n”) at 11 n.4. The Government expects to “promptly obtain travel documents for…Portillo once the Second Circuit addresses his petition for review or denies his stay motion.” Pardo-Figueroa Decl. 23. That expectation is based on recent experience: the Government “routinely obtains travel documents for natives and citizens of Honduras, and it frequently schedules charter flights to remove noncitizens to Honduras.” Id. And ICE “has previously obtained travel documents to effectuate removal to Honduras for Marin Portillo.” Id. While Portillo is detained, ICE will “continue to periodically review” his detention and conduct post-order custody reviews. Id. 24. On July 19, 2021, Portillo submitted to ICE a request for release from detention subject to ankle monitoring; on July 28, 2021, ICE denied the request on the ground that Portillo was an enforcement priority. Id. 19; see Dkt. 5-6. On July 30, 2021, after a 90-day post-order custody review of Portillo’s detention, the New York Field Office of ICE’s Office of Enforcement and Removal Operations (“ICE ERO-NYC”) issued a “Decision to Continue Detention.” See Dkt. 5-5. It held that, in light of Portillo’s immigration and criminal history, his continued ICE custody pending removal from the United States was warranted. Id. at 1-2. On September 4, 2021, ICE ERO-NYC conducted a 180-day post-order custody review of Portillo’s detention, which included an interview of Portillo and his counsel by an ICE ERO-NYC panel. Pardo-Figueroa Decl. 20. On September 9, 2021, ICE ERO-NYC determined that Portillo should remain detained pending removal, noting, again, that he was an enforcement priority who warranted continued detention. Id. On February 24, 2022, ICE ERO Headquarters issued a decision to continue detention, noting that “ICE is unable to conclude that the factors set forth at 8 C.F.R. §241.4(e) have been satisfied.”3 Dkt. 9-1 at 1. On March 3, 2022, ICE served the decision on Portillo. Id. at 2. On November 16, 2021, Portillo submitted to ICE another request for release. His request did not set out any new information in support of release. Pardo-Figueroa Decl. 21. That same day, ICE denied the request on the ground that Portillo had not identified any new facts or circumstances. In conveying this outcome to Portillo’s counsel, it attached a copy of its previous denial of Portillo’s request for release, dated July 28, 2021. Id. B. Status of Portillo’s Petition for Review in the Second Circuit As noted, in April 2021, Portillo filed in the Second Circuit a petition for review of ICE’s negative determinations on his claim of reasonable fear, and a motion to stay removal. Briefing on the motion to stay appears to have completed on June 16, 2021. See Portillo, No. 21-6228, at Dkt. 31 (docket entry indicating that, on June 16, 2021, Portillo filed a reply to the Government’s opposition to his motion to stay). On November 17, 2021, Portillo filed a brief in support of his petition for review; on February 16, 2022, the Government filed its opposition. See Portillo, No. 21-6228, Dkts. 38, 45. The Circuit has not yet resolved Portillo’s petition for review or motion to stay removal.4 C. Portillo’s Action in this Court On November 17, 2021, Portillo filed in this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2241, seeking his release pending the Circuit’s resolution of his petition for review. Dkt. 1 (“Pet.”). On February 1, 2022, the parties submitted a joint letter setting a briefing schedule and requesting expedited consideration of the habeas petition. Dkt. 3. The Court granted the request. Dkt. 4. On February 3, 2022, the Government filed its opposition to the habeas petition. Dkt. 7. On February 14, 2022, Portillo filed his reply. Dkt. 8 (“Reply”). II. Jurisdiction and Venue This Court has subject matter jurisdiction to hear Portillo’s petition for a writ of habeas corpus under 28 U.S.C. §2241. See Rodriguez Sanchez v. Decker, No. 18 Civ. 8798 (AJN), 2019 WL 3840977, at *4 (S.D.N.Y. Aug. 15, 2019) (citing Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004)). Venue is proper in this District because Portillo is being detained in Orange County Jail in Goshen, New York, which is within this District. See 28 U.S.C. §2241(d) (“[T]he application may be filed in the district court for the district wherein such person is in custody.”); see also Almazo v. Decker, No. 18 Civ. 9941 (PAE), 2018 WL 5919523 (S.D.N.Y. Nov. 13, 2018); Rodriguez Sanchez, 2019 WL 3840977, at *4 (“Thus, the proper district for a core habeas claim is the district that has territorial jurisdiction over the proper respondent.”) (internal quotation marks omitted); id. (“Because [Decker] is the proper respondent and is subject to this Court’s jurisdiction, Petitioner’s habeas petition is properly before this Court.”). III. Legal Standard Title 8 U.S.C. §1231(a) governs the detention of removable noncitizens. Section 1231(a)(1) gives the Attorney General 90 days to remove from the United States a noncitizen ordered removed. But 90 days is not a hard and fast deadline for removal. Section 1231(a)(6) authorizes the Attorney General to detain certain categories of removable noncitizens for longer than the 90-day statutory removal period. See Zadvydas v. Davis, 533 U.S. 678, 688-89 (2001); Reynoso v. Aviles, 87 F. Supp. 3d 549, 562 (S.D.N.Y. 2015). It is undisputed that Portillo fits within at least one, if not more, or these categories, including based on his criminal record.5 Because Section 1231(a)(6), on its face, appears to authorize the indefinite detention of certain classes of noncitizens, the Supreme Court has “interpret[ed] the statute to avoid a serious constitutional threat” and held that “once removal is no longer reasonably foreseeable, continued detention is no longer authorized by the statute.” Zadvydas, 533 U.S. at 699. In so holding, the Court recognized a “presumptively reasonable period of detention” of six months. Id. at 701; see also Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003). “After this 6-month period, once the [noncitizen] 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.” Zadvydas, 533 U.S. at 701. Regulations codified at 8 C.F.R. §241.4 generally govern the continued detention of qualifying noncitizens following the 90-day removal period. Pursuant to those, ICE conducts a custody review (1) prior to the completion of the 90-day removal period, (2) again at 180 days of detention, and (3) thereafter annually or whenever there has been a material change in circumstances since the last annual review. See 8 C.F.R. §241.4(k)(1)-(2). In such reviews, ICE makes a discretionary decision whether continued detention is justified, based on numerous factors including, inter alia, a detainee’s flight risk and risk of committing future crimes. See id. §241.4(f). Regulations codified at 8 C.F.R. §241.13 implement the holding in Zadvydas. Under those, a noncitizen who provides “good reason to believe there is no significant likelihood of removal…in the reasonably foreseeable future” is entitled to agency review of as much. Id. §241.13(a). If the agency finds that there is no significant likelihood of removal, the noncitizen must be released, unless special circumstances justify continued detention. Id. §241.13(g)(1); see id. §241.14. Conversely, if there is a significant likelihood of removal in the reasonably foreseeable future, the noncitizen must continue to be detained, subject to the general procedural framework governing the detention of noncitizens after the 90-day removal period, as set forth in 8 C.F.R. §241.4. See id. §241.13(b)(1), (g)(2). IV. Discussion6 A. Statutory Challenge Portillo first argues that his detention is unlawful under Zadvydas because his release is not reasonably foreseeable. As of the date of this decision, Portillo has been detained for more than a year — well beyond the general 90-day removal period and presumptively reasonable six-month period of detention authorized for noncitizens detained under 8 U.S.C. §1231(a)(6). See Zadvydas, 533 U.S. at 701. A detention of this length of time does not, however, alone establish a violation of a noncitizen’s rights under Zadvydas. See Callender v. Shanahan, 281 F. Supp. 3d 428, 436 (S.D.N.Y. 2017) (“Regardless of the length of the detention to date, ‘Zadvydas places the burden of proving that there is no significant likelihood of removal in the reasonably foreseeable future on the alien.’”) (quoting Agoro v. Dist. Dir. for Immigr. Custom Enf’t, No. 09 Civ. 8111 (SAS), 2010 WL 9976, at *4 (S.D.N.Y. Jan. 4, 2010), aff’d, 403 F. App’x 536 (2d Cir.) (summary order)); see also Leslie v. Mule, 423 F. App’x 29, 30 (2d Cir. 2011) (summary order) (affirming denial of habeas petition notwithstanding noncitizen’s having been detained “well beyond the six-month period found presumptively reasonable”). The issue is whether Portillo’s removal is reasonably foreseeable. It clearly is. The Government has persuasively shown that it stands at the ready to remove Portillo once court-authorized to do so. It avers — and Portillo does not contest — that the United States (1) maintains diplomatic relations with Honduras and regularly removes noncitizens there via chartered flights, (2) has removed Portillo to Honduras on two prior occasions, each of which occurred within one month of his having been ordered removed, and (3) expects to promptly obtain travel documents for Portillo — as it has multiple times before — upon the Second Circuit’s resolution of Portillo’s pending appeal in the Government’s favor. See Pardo-Figueroa Decl.
