Nicholas Leslie v. Charles Mule ( 2011 )

10-2115-pr
Nicholas Leslie v. Charles Mule, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure
32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with
this court, a party must cite either the Federal Appendix or an electronic database (with the
notation “summary order”). A party citing a summary order must serve a copy of it on any party
not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel
Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the
23rd day of May, two thousand eleven.
PRESENT:
ROGER J. MINER,
JOSÉ A. CABRANES,
CHESTER J. STRAUB,
Circuit Judges.
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NICHOLAS LESLIE,
Petitioner-Appellant,
v. No. 10-2115-pr
CHARLES MULE, FACILITIES DIRECTOR, BUFFALO FEDERAL DETENTION FACILITY; WILLIAM CLEARY,
DISTRICT DIRECTOR, DRO FIELD OFFICE; ERIC J. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED
STATES,
Respondents-Appellees.
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FOR PETITIONER-APPELLANT: Nicholas Leslie, pro se, Batavia, NY.
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FOR RESPONDENTS-APPELLEES: Gail Y. Mitchell, Assistant United States
Attorney (William J. Hochul, Jr., United States
Attorney), Office of the United States
Attorney for the Western District of New
York, Buffalo, NY.
Appeal from a judgment of the United States District Court for the Western District of New
York (Michael A. Telesca, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Nicholas Leslie, pro se, appeals from the May 6, 2010 judgment of the District Court denying
his 28 U.S.C. § 2241 petition. We assume the parties’ familiarity with the facts and procedural
history of this action.
We review de novo a district court’s denial of a § 2241 petition. See Rankine v. Reno, 319 F.3d
93, 98 (2d Cir. 2003). 28 U.S.C. § 2241(c)(3) authorizes a district court to consider the legal claims
of a prisoner who is “in custody in violation of the Constitution or laws or treaties of the United
States.”
Although the law provides that when an alien is ordered removed, the Attorney General
must remove the alien within a period of 90 days, a habeas petitioner’s due process rights “are not
jeopardized by his continued detention as long as his removal remains reasonably foreseeable.”
Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003) (citing Zadvydas v. Davis, 533 U.S. 678, 699–701
(2001)). In Zadvydas, the Supreme Court held that six months of detention, following a final order
of removal, is presumptively constitutional, but the Court also held that the presumption “does not
mean that every alien not removed must be released after six months.” Zadvydas, 533 U.S. at 701.
“To the contrary, an alien may be held in confinement until it has been determined that there is no
significant likelihood of removal in the reasonably foreseeable future.” Id. “After this 6-month
period, 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.In this case, Leslie has not demonstrated that there is no significant likelihood of removal in
the reasonably foreseeable future. Leslie has been detained well beyond the six-month period found
presumptively reasonable; however, the evidence presented to the District Court and this Court by
the respondent indicates that the delay in processing Leslie’s removal has been caused by his own
refusal to cooperate and his false claims of United States citizenship. Petitioner has not provided
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this Court with any authority or evidence demonstrating that the District Court’s findings were
incorrect. Accordingly, we affirm the judgment of the District Court.
CONCLUSION
For the reasons stated above, the judgment of the District Court is AFFIRMED.
FOR THE COURT
Catherine O’Hagan Wolfe, Clerk of Court
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