Vigo v. Mayorkas

Background

Denroy Vigo, who was incarcerated at Fishkill Correctional Facility, filed a petition under 28 U.S.C. § 2241 challenging his detention and seeking cancellation of removal, a new review of his removal proceedings, and transcripts of his immigration proceedings. He represented himself. Vigo was serving a 25-years-to-life sentence based on a 1988 New York state conviction. An immigration judge ordered his removal on September 28, 1994. In 2021, the New York State Department of Corrections and Community Supervision approved him for conditional parole for deportation, but public records showed that he remained in state custody when he filed the petition and when the court issued its order.

Challenge to Detention

The court explained that 8 U.S.C. § 1231 requires the government to remove a person within a 90-day removal period after a removal order. Under § 1231(a)(1)(B)(3), when a person is detained or confined outside the immigration process, that period begins when the person is released from that detention or confinement. The Supreme Court has held that detention after the removal period generally cannot continue beyond the time reasonably necessary to secure removal; six months is presumptively reasonable, subject to the person's showing that removal is not significantly likely in the reasonably foreseeable future.

Vigo calculated the removal period from the date the state parole authority approved conditional release. The court rejected that calculation. It held that the period did not begin when the conditional-release order issued because Vigo had not actually been released from state custody. The court therefore found no basis for relief from his detention. It also noted that Vigo had not shown that removal was not significantly likely in the reasonably foreseeable future.

Challenge to the Removal Order

The court treated Vigo’s request for cancellation of removal as potentially challenging the 1994 removal order. Under the REAL ID Act, a petition for review filed in the appropriate federal court of appeals is the sole and exclusive method for judicial review of a removal order; a federal district court lacks jurisdiction to review that order. The petition for review must be filed within 30 days after the removal order becomes final.

Vigo did not allege that he appealed the immigration judge’s decision to the Board of Immigration Appeals. The court concluded that the removal order became final when the time for that appeal expired, and that Vigo’s challenge—filed decades later—was untimely. Because an untimely challenge could not be transferred to the Court of Appeals for the Second Circuit, the court declined to transfer it.

Disposition

Judge Laura Taylor Swain denied the § 2241 petition insofar as Vigo challenged his detention. The court held that it lacked jurisdiction to consider any challenge to the 1994 removal order and declined to transfer that portion of the matter to the Second Circuit because it was untimely. The court also ruled that a certificate of appealability would not issue and denied permission to proceed without paying fees for an appeal, certifying that an appeal would not be taken in good faith.