Opinion
3:02-CV-2652-D
July 16, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241, filed by an alien who has been ordered removed. Parties: Petitioner is presently confined at the Tri-County Detention Center in Ullin, Illinois. Respondents are John Ashcroft Attorney General of the United States, and Brian Perryman, District Director of the Immigration and Naturalization Service (INS) (presently United States Department of Homeland Security, Bureau of Immigration and Customs Enforcement (BICE) and/or Bureau of Citizenship and Immigration Services (BCIS)). The court has issued process in this case.
Petitioner initially filed this action in the United States District Court for the Northern District of Illinois, which in turn transferred it to this Court following Petitioner's transfer to the Rolling Plains Detention Center in Haskell, Texas. See Apau v. Ashcroft, No. 02-CV-2633 (N.D. Ill. Chicago Div.).
Procedural History: Petitioner, a native and citizen of Ghana, entered the United States as a visitor in 1979. (Respondent's Exh. 1). He sought and obtained temporary residence in 1987. (Id.). In February 1993, Petitioner was convicted, under the name Michael Coleman, of possession of cocaine and fourth degree sexual assault in the Circuit Court of Milwaukee County, Wisconsin. (Respondent's Exhs. 2 and 3). He was sentenced to one year probation for the first offense, and two years probation and four months work release for the second offense. (Id.). On May 5, 1994, the INS terminated Petitioner's temporary residence on the basis of the above convictions. (Respondent's Exh. 5). The Office of Administrative Appeals dismissed his appeal on May 30, 1995. (Respondent's Exh. 6).
As a result of the fourth degree sexual assault offense, the INS detained Petitioner and placed him in removal proceedings on January 7, 2002. (Respondent's Exh. 7). On February 8, 2002, an INS officer ordered Petitioner removed. (Respondent's Exh. 8). Petitioner did not file a petition for review. As a result, the removal order became administratively final thirty days thereafter. Petitioner has remained in INS post-removal-order custody since that date.
On March 5, 2002, the INS formally requested travel documents on behalf of Petitioner from the Consulate of Ghana in New York. (Respondent's Exh. 9). Although no response is enclosed with Respondent's motion to dismiss, it appears that the Consulate of Ghana has requested a copy of Petitioner's birth certificate or other form of identification from Ghana in order to issue a travel document. (Respondent's Exh. 11). Petitioner was advised of that fact on October 21, 2002, in connection with the INS's decision to continue his detention following a review of his file. (Id.). Petitioner's custody status was subsequently reviewed by the INS Headquarters Post-Order Detention Unit (HQPDU), which issued a written decision to continue Petitioner's custody on December 3, 2002. (Respondent's Exh. 12).
In response to a request from a detained alien the HQPDU will conduct a review to determine whether there is a significant likelihood of an alien's removal from the country in the reasonably foreseeable future. See 8 C.F.R. § 241.13. The HQPDU first determines "if the alien has failed to make reasonable efforts to comply with the removal order, has failed to cooperate fully in effecting removal, or has obstructed or hampered the removal process." 8 C.F.R. § 241.13(e)(2). It will then "advise the alien in writing of the efforts he/she needs to make in order to assist in securing travel documents for return to his or her country of origin or a third country, as well as the consequences of failure to make such efforts or to cooperate, including the provisions of section 243(a) of the Act." Id.
On December 3, 2002, the HQPDU informed Petitioner as follows: "You must demonstrate that you are co-operating with the INS' effort to remove you by exhausting all possible means to obtain a travel document for your repatriation." (Respondent's Exh. 12). Petitioner has not responded to the HQPDU's request that he cooperate with the INS in obtaining travel documents to Ghana. As a result, the INS is not "obligated to conduct a further consideration of the alien's request for release until the alien has responded to the HQPDU and has established his or her compliance with the statutory requirements." 8 C.F.R. § 241.13(e)(2).
In the present action, filed on April 11, 2002, Petitioner argues that his detention pending removal/deportation exceeds the reasonable period of detention set out in Zadvydas v. Davis, 533 U.S. 678 (2001).
In response to this court's order to show cause, Respondent filed a motion to dismiss to which Petitioner filed his objections.
Findings and Conclusions: Once an alien is ordered removed, the Immigration and Nationality Act (INA) states that the Attorney General is obligated to effect the removal within 90 days. 8 U.S.C. § 1231(a)(1)(A). After an order of removal becomes final and during the 90-day removal period, aliens must be held in custody. 8 U.S.C. § 1231(a)(2). An alien may be detained beyond the 90 day period if he/she is inadmissible (under 8 U.S.C. § 1182), removable (under certain provisions of 8 U.S.C. § 1227), or has been determined to be a risk to the community or unlikely to comply with the order of removal. 8 U.S.C. § 1231(a)(6).
In Zadvydas v. Davis, 533 U.S. 678 (2001), the United States Supreme Court held that detention under § 123 1(a)(6) may not continue indefinitely. Rather, the Court concluded that six months (from the date the order of removal becomes final) is a presumptively reasonable period of detention to secure an alien's removal from the United States. Id., at 700-701. The Court held, "once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." Id at 699. "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. at 701. The Supreme Court emphasized that the six-month presumption does not mean that every alien not removed must be released after six months. Id. "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.
Petitioner cannot make the necessary showings to be entitled to relief under Zadvydas, First, he cannot show that he was in post-removal custody for six months prior to filing the habeas petition in this case. See Akinwale v, Ashcroft, 287 F.3d 1050, 1052 and n. 3 (11th Cir. 2002) (six-month period following order of removal must have elapsed before the filing of habeas petition challenging confinement under Zadvydas). The instant petition was filed on April 11, 2002, only thirty days after the order of removal became final.
Second, even had Petitioner waited to file the instant action until after the six-month presumptive period had expired, he has not alleged sufficient evidence to establish "that there is no significant likelihood of removal in the reasonably foreseeable future." Zadvydas, 533 U.S. at 701. His pleadings, even when liberally construed, challenge primarily his removal proceedings, in particular the lack of a hearing before an INS judge (Petitioner's Brief filed on April 11, 2003, at 4-5), and Petitioner's entitlement to discretionary relief from deportation under INA § 212(h) (Petitioner's Brief, filed on June 30, 2003, at 7).
The brief filed on April 11, 2003, is a duplicate of the handwritten brief filed on March 10, 2003.
Petitioner's reliance on Patel v. Zemski, 275 F.3d 299 (3rd Cir. 2001), which addressed mandatory detention pending a final removal order, is inapposite. Moreover, Patel was recently abrogated byDemore v. Kim, ___ U.S. ___, 123 S.Ct. 1708 (2003).
Insofar as Petitioner relies on the bare fact that the Ghana Consulate has not yet issued any travel documents for him despite the efforts of the INS to secure them, his allegations are insufficient to demonstrate a significant unlikelihood of his removal in the reasonably foreseeable future. Petitioner has alleged no institutional barrier to the repatriation of aliens to Ghana. Indeed a case from the Northern District of Illinois indicates that Ghana accepts back its citizens who are deported from this country. See Sekyere v. United States, 1990 WL 77899 (N.D. Ill. May 21, 1990) (No. 89 C 8690, 88CR509-1) (dismissing habeas petition for want of prosecution due to federal prisoner's deportation to Ghana). Moreover, Petitioner's situation is in marked contrast to that of Kim Ho Ma and Kestutis Zadvydas, the aliens whose cases were considered in Zadvydas. Ma was from Cambodia, a country with which the United States has no repatriation agreement. As a result there was virtually no hope of repatriating Ma back to his native land. Zadvydas, 533 U.S. at 686. Likewise Zadvydas, having been born in a refugee camp, was literally a man without a country and, therefore, was an individual whom no other nation would ever accept, no matter the efforts of the INS. Zadvyadas, 533 U.S. at 684. Similar facts do not exist in this case.
In addition to failing to show an institutional barrier, Petitioner cannot show any particular individual barriers to his repatriation to Ghana. The lack of visible progress since the INS requested travel documents from the Ghana Consulate does not in and of itself meet his burden of showing that there is no significant likelihood of removal.Fahim v. Ashcroft, 227 F. Supp.2d 1359, 1366 (N.D. GA. 2002) (mere fact that Egyptian government has taken its time in responding to the INS request for travel documents does not mean that it will not do so in the future). Moreover, as alleged by the government, Petitioner has failed to cooperate with the INS in obtaining any form of government-issued identification demonstrating that he is a citizen of Ghana. (Respondent's Exhs. 10-11). The Consulate General of Ghana has indicated that its access to Petitioner's birth certificate or other form of identification from Ghana could facilitate Petitioner's removal. (Respondent's Exh. 11). Petitioner's pleadings do not dispute either of the above allegations. Thus, it appears that Petitioner is not only not trying to get back to Ghana promptly, but that he is, in fact, trying to thwart his removal. "To the extent that Petitioner may hold, in part, the keys to his jail cell, he cannot complaint, when he hides those keys, about his continued detention." Fahim, 227 F. Supp.2d at 1366.
Petitioner has failed to produce any facts indicating that the INS is incapable of executing his removal to Ghana and that his detention will be of an indefinite duration. There is nothing to indicate that once a birth certificate or other form of identification is obtained Petitioner will not be removed. Accordingly, the Magistrate Judge finds no violation of Petitioner's constitutional rights with respect to his continued detention. The petition for writ of habeas corpus should be dismissed without prejudice to the right to file a new petition if circumstances change. Akinwale v. Ashcroft, 287 F.3d 1050, 1052. RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court grant Respondent's motion to dismiss and dismiss the petition for writ of habeas corpus without prejudice.
It is further recommended that Petitioner's motion to stay deportation (docket #11) and his motion for appointment of counsel (docket #19) be denied as moot.
A copy of this recommendation will be transmitted to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Serv. Auto Assn., 79 F.3d 1415 (5th Cir. 1996)( en banc) a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.