Opinion
Civil No. 02-1387 (MJD/JGL)
February 5, 2003
Jeffery J. Keyes, Esq., and Kevin M. Magnuson, Esq., for Petitioners
Friedrich Siekert, Esq., Assistant United States Attorney, for Respondent
REPORT AND RECOMMENDATION
The above-entitled matter is before the undersigned Chief Magistrate Judge of District Court on Petitioners' Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241. This matter has been referred to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636 and D. Minn. LR 72.1. For the reasons set forth below, this Court recommends that Petitioners' Petition for a Writ of Habeas Corpus be granted in part and denied in part.
I. Factual and Procedural History
Somalia has not had a functioning government since 1991. Petitioners are Somali nationals who face final removal orders and are in INS custody pending removal. All appeared before immigration judges, admitted that they were subject to removal, and applied for asylum. All were denied asylum and received a "warrant of removal" following the Board of Immigration Appeals ("BIA") decision making their removal orders final. Importantly, none of Petitioners are challenging the merits of their removals. Rather, they are challenging the fact that they are to be removed to Somalia, a country with no working government to accept them. Petitioners also contest their post-removal-order detentions and seek to be released from INS custody. A summary of the facts specific to each Petitioner follows.
A. Petitioner Ali Gama Omar
Petitioner Ali Gama Omar ("Gama Omar") entered Canada in November 1989 seeking refugee status. (Resp. Response Pet. Habeas Corpus at 7.) Canada denied Gama Omar refugee status. On September 17, 1997, Gama Omar was arrested by the United States Border Patrol and placed in removal proceedings for using false documents to obtain admission to the United States. (Id.) Gama Omar was released from INS custody after being served with the charges. On September 27, 1997, Gama Omar applied for asylum and withholding of removal. (Id.) In this application, Gama Omar used the alias "Colow" because he had been arrested by the INS under the name Ali Gama Omar. (Resp. Ex. 21.) Gama Omar failed to appear for a removal hearing concerning his attempted entry in New York, and was ordered removed in absentia on December 12, 1997. (Id. at 7-8.)
The Parties dispute whether Gama Omar is the subject of an arrest warrant in Canada. That dispute need not be resolved for the Court to address the instant petition.
On February 2, 1998, the INS charged Gama Omar, under the name Colow, for being subject to removal because he did not possess valid entry documents. (Resp. Ex. 23.) In proceedings before the Immigration Court, Gama Omar admitted the allegations against him and conceded that he was subject to removal. (Resp. Ex. 24 at 2.) Gama Omar was denied asylum and again ordered removed on June 6, 1999. (Resp. Ex. 25 at 17; Resp. Ex. 26.) No country of removal was designated at this time. (Id.) On or about May 17, 2002 Gama Omar withdrew the appeal he filed regarding this decision. (Resp. Response Pet. Writ Habeas Corpus at 8.)
Both Parties use May 17, 2002 as the date Gama Omar withdrew his appeal. (Am. Consol. Pet. Writ Habeas Corpus ¶ 11; Resp. Response Pet. Writ Habeas Corpus at 8.) However, documentation indicates that Gama Omar actually withdrew his petition on May 6, 2002. (Resp. Ex. 27.) The Court assumes there were some procedural matters, not documented here, that pushed the actual dismissal of the appeal to May 17, 2002. At any rate, the Court will use May 17, 2002, the date upon which the Parties agree, as the relevant date.
On February 28, 2002, the INS arrested and detained Gama Omar, and conducted a review of his custody status. (Resp. Ex. 21.) On June 24, 2002, the INS found that Gama Omar was subject removal for failing to provide evidence of identification or citizenship; filing a fraudulent asylum claim; being ordered removed from the United States under two different names; being subject to arrest and deportation from Canada; and being a flight risk for failing to appear for his previous removal hearing. (Resp. Ex. 28.) On September 3, 2002, Gama Omar was ordered detained pending trial on charges of using false documents in immigration matters. (Pet. Ex. H.) Gama Omar is currently in the custody of the United States Marshal. (Id.) Gama Omar filed the instant petition on June 27, 2002.
B. Abdulkadir Sharif Abdi Mohamed
Abdulkadir Sharif Abdi Mohamed ("Abdulkadir Mohamed") was admitted to the United States as a refugee on or about July 11, 1996. (Resp. Ex. 31 at 3.) During 1999, Abdulkadir Mohamed was convicted of the following offenses: theft of property and fleeing a police officer, for which he received probation (Resp. Ex. 32); issuing a check with insufficient funds (Resp. Ex. 33); and unauthorized use of a motor vehicle (Resp. Ex. 34). Abdulkadir Mohamed's probation was revoked in October 1999, partly because he committed an offense while on probation. (Resp. Ex. 34A.)
In October 2001, the INS charged that Abdulkadir Mohamed was subject to removal for committing crimes of moral turpitude. (Resp. Ex. 35.) Abdulkadir Mohamed applied for permanent resident status, and the INS denied the application. (Resp. Ex. 35A; Ex. 36.) On January 29, 2002 the Immigration Court ordered that Abdulkadir Mohamed's application for adjustment of immigration status, application for withholding of removal, and application for relief under Article 3 of the Convention Against Torture be denied. (Resp. Ex. 37 at 14.) The immigration judge addressed many factors in his order, including Abdulkadir Mohamed's gang ties. (Id. at 9, 11.) The immigration judge ordered Abdulkadir Mohamed removed from the United States, but did not designate a country of destination. (Id. at 14.) Abdulkadir Mohamed did not appeal the judge's decision.
Abdulkadir Mohamed has been in immigration detention since he was released from jail on or about October 4, 2001. (Resp. Ex. 38.) In April 2002, the INS issued a warrant of removal against Abdulkadir Mohamed. (Resp. Ex. 39.) After conducting a review of Abdulkadir Mohamed's custody status the INS concluded that he must remain in immigration detention because he is a danger to society. (Resp. Ex. 38.) Abdulkadir Mohamed filed the instant petition on June 27, 2002.
C. Mohamed Abdi Mohamed
In May 1998 Mohamed Abdi Mohamed ("Abdi Mohamed") appeared before an immigration judge and admitted that he was an alien present in the United States without being admitted or paroled. (Resp. Ex. 3, 4.) The judge ordered Abdi Mohammed removed to Somalia. (Resp. Ex. 4.) At this hearing Abdi Mohamed applied for asylum and withholding of removal. (Id.) In his application for asylum and withholding or removal, Abdi Mohamed claimed that he would be in danger if he returned to Somalia. (Resp. Ex. 5.) On July 17, 1998 an immigration judge denied Abdi Mohamed's application for asylum and withholding of removal, and ordered him removed to Somalia. (Resp. Ex. 6.) Abdi Mohamed failed to file a timely appeal of the immigration judge's decision.
In March 1999 the INS issued a warrant of removal against Abdi Mohammed. (Resp. Ex. 8.) The INS also sent a letter to Abdi Mohammed directing him to appear at the San Diego, California INS office for removal from the United States, but the letter was returned without delivery. (Resp. Response Pet. Habeas Corpus at 6.)
On June 1, 1999 the BIA denied Abdi Mohamed's untimely appeal. (Resp. Ex. 10.) In December 2000 Abdi Mohamed filed a motion to reopen his removal proceedings, which was denied on March 14, 2001. (Resp. Ex. 7.) On October 23, 2001 Abdi Mohammed applied for temporary protected status stating that he did not enter the United States until October 25, 2001. (Resp. Ex. 11 at 2.) This application was apparently denied on June 7, 2002. (Resp. Ex. 12.)
On June 7, 2002 Abdi Mohamed was arrested pursuant to his 1999 deportation warrant. (Id.) Apparently, at the time of his arrest Abdi Mohamed was voluntarily participating in a post-September 11 FBI interview. (Pet. Opp. Resp. Response at 7; Pet. Ex. J.) At that time, Abdi Mohamed stated that he was also known as Abdi Fitah, that he had refugee status in the Netherlands since 1994, and that he had arrived in the United States on October 14, 1997 using a Netherlands passport. (Id.) The INS denied Abdi Mohamed's application for temporary protected status because he failed to establish that he was a Somali national. (Resp. Ex. 13.) On June 17, 2002 the INS sent a letter to the Netherlands requesting travel documents for Abdi Mohamed. (Resp. Ex. 14.) The Netherlands has yet to respond to this request. (Resp. Response Pet. Habeas Corpus at 7.)
Abdi Mohamed was charged with possession and use of false identification documents. On August 26, 2002, the Honorable Franklin Noel found that Abdi Mohamed had sufficient ties to the community to not pose a flight risk and ordered him released pending his criminal trial. (Resp. Ex. 2A.) However, it appears that the INS took Abdi Mohamed into custody on that date. (Pet. Opp. Resp. Response at 8.) Abdi Mohamed filed the instant petition on June 27, 2002.
D. Mahad Mohamed Omar
Mahad Mohamed Omar ("Mahad Omar") entered the United States in September 1995 through the Diversity Immigrant Visa Program. (Resp. Reply Ex. 1, 2.) On May 10, 1999 Mahad Omar pleaded guilty to two felony counts of vehicular operation in conjunction with an automobile accident in which two people were killed. (Resp. Reply Ex. 3.) Mahad Omar was sentenced to forty-eight months in the Minnesota Department of Corrections, but the sentence was stayed, and Mahad Omar was ordered to serve one year in jail on each count. (Resp. Reply Ex. 4.)
In May 2000, the INS commenced removal proceedings against Mahad Omar because he had been convicted of an aggravated felony for which the term of imprisonment was at least a year. (Resp. Reply Ex. 5.) On August 31, 2000 an immigration judge ordered Mahad Omar removed to Somalia. (Id. at 16.) During removal proceedings, Mahad Omar declined to designate a country of removal, so the immigration judge designated Somalia. (Id. at 2 13.) The immigration judge also denied Mahad Omar's request for asylum or withholding of removal because Mahad Omar had been convicted of a felony and sentenced to more than five years in prison. (Id. at 2.) In addition, the immigration judge found that Mahad Omar failed to demonstrate that he would be in danger in Somalia either because of his clan affiliation, or because of retaliation by persons related to those killed in the 1996 automobile accident. (Id. 13-15.)
Mahad Omar appealed the immigration judge's order to the BIA. (Resp. Reply Ex. 7.) On May 8, 2001, the BIA upheld the decision of the immigration judge. (Id.) On June 6, 2001, Mahad Omar petitioned the Eighth Circuit for review of the BIA's decision. (Resp. Reply Ex. 8.) On August 5, 2002, the Eighth Circuit dismissed Mahad Omar's petition for review. (Resp. Reply Ex. 9 at 7.) On November 19, 2002 the Eighth Circuit also denied Mahad Omar's petition for rehearing en banc. (Id.) Mahad Omar has been in INS custody since May 19, 2000, the date he was released from jail. (Resp. Reply Ex. 11.)
On June 16, 2001, the INS attempted to remove Mahad Omar to Somalia. The INS was able to get Mahad Omar as far as Sweden before he became unruly and resisted his removal to Somalia. (Resp. Reply Ex. 14 at 2.) Sweden rejected Mahad Omar's request for asylum, and Mahad Omar was returned to the United States on January 16, 2002. (Id.) The INS conducted a custody review of Mahad Omar's case in July 2002. The INS concluded that Mahad Omar must remain in custody pending removal because he had hindered the attempt to remove him to Somalia, and posed a flight risk. (Resp. Reply Ex. 14 at 6.) Mahad Omar joined the instant petition on October 8, 2002.
II. DISCUSSION
All petitioners argue that they cannot be deported to Somalia because Somalia has not agreed to accept them. Respondent responds that the action should dismissed for lack of jurisdiction. Respondent also asserts that petitioners can legally be removed to Somalia, even though there has been no indication they will be accepted into that country. The Court will address each of the Parties' arguments separately.
A. Whether This Court Lacks Jurisdiction Over These Claims Due to Petitioners' Failure to Exhaust Administrative Remedies
Respondent argues that this court lacks jurisdiction over the petitions of Gama Omar, Abdulkadir Mohamed, and Abdi Mohamed because those petitioners failed to appeal their removal orders to the Eighth Circuit. Regarding Mahad Omar, Respondent argues that his failure to challenge the practicality of his removal to Somalia in his petition for review also demonstrates failure to exhaust administrative remedies. For support, Respondent cites 8 U.S.C. § 1252(b)(1) and 1252(b)(9). Section 1252(b) provides in pertinent part:
With respect to review of an order of removal. . . . the following requirements apply:
(1) Deadline. The petition for review must be filed not later than 30 days after the date of the final order of removal.
(2) Venue and forms. The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.
* * *
(9) Consolidation of questions for judicial review. Judicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States under this title . . . shall be available only in judicial review of a final order under this section.8 U.S.C. § 1252(b)(1),(2),(9). 8 U.S.C. § 1252(d) states that "[a] court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien."
The Court does not find Respondent's argument compelling. Mohamed Omar has exhausted his appeals, and the other Petitioners all concede their removability. Had Petitioners challenged the merits of their removal orders, they would be required to comply with the above requirements. However, Petitioners do not challenge the merits of their orders. All expressly agree that they are subject to removal. (Pet. Opp. Resp. Response at 6.) Petitioners are only challenging the execution of their removals, specifically the INS' ability to remove them to Somalia, a country without a working government, a pure question of law. This fact makes the instant case unique and distinguishable from the typical habeas case. The Court finds that it has jurisdiction to review this challenge.See Farah v. INS, CIV. No. 02-4725, 2002 WL 31866481, at *4 (D. Minn. Dec. 20, 2002); Jama v. INS, CIV. No. 01-1172, 2002 WL 507046, at **3-4 (D. Minn. March 31, 2002).
B. Whether This Court Lacks Jurisdiction Over These Claims Under 8 U.S.C. § 1252(g)
Respondent also argues that this case must be dismissed for lack of jurisdiction under 8 U.S.C. § 1252(g) which states, in pertinent part:
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.8 U.S.C. § 1252(g). The Court finds Respondent's argument misplaced. Two recent cases from this District have addressed this issue, and the Court finds their reasoning instructive. See Farah v. INS, No. CIV. 02-4725, 2002 WL 31866481 (D. Minn. Dec. 20, 2002); Jama v. INS, No. CIV. 01-1172, 2002 WL 507046 (D. Minn. March 31, 2002). Both cases had facts similar to the facts of the instant case. In Jama, the petitioner was a Somali refugee who was ordered removed as a result of a felony conviction. See Jama, 2002 WL 507046 at *1. In Farah, the petitioner was a Somali national who was ordered removed for failing to comply with immigration laws. See Jama, 2002 WL 31866481 at *1. In Jama, the Honorable John R. Tunheim concluded that § 1252(g) does not bar petitioners from seeking habeas corpus relief under § 2241. In so holding, the Jama court relied on the Supreme Court's reasoning in INS v. St. Cyr, 533 U.S. 289 (2001). The Farah court adopted Jama's reasoning in its entirety.
In St. Cyr, the Supreme Court held that the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act did not eliminate habeas review under § 2241. See id. at 314. Specifically, the Supreme Court held that in the absence of a "clear, unambiguous, and express statement of congressional intent to preclude judicial consideration on habeas," habeas relief was still available. Id. Although St. Cyr did not address § 1252(g), the Jama court found that its reasoning applied to such cases. See Jama, 2002 WL 507046 at *2. Specifically, the Jama court concluded that neither § 1525(g) nor the statutory sections addressed in St. Cyr expressly mentioned habeas relief or § 2241. See id. The Jama court held that in the absence of an express statement to the contrary, the statute's failure to mention habeas "should not be understood to eliminate such review by implication." Id.; See also Shah v. Reno, 184 F.3d 719, 723-24 (8th Cir. 1999); Ali v. Ashcroft, No. C02-2304P, 6 (W.D. Wash. Jan. 17, 2003).
In addition, this Court agrees with the Jama court that interpreting § 1252(g) to foreclose habeas review would give rise to "serious constitutional problems." Jama, 2002 WL 507046 at *3 (quoting St. Cyr, 533 U.S. at 305) ("a serious Suspension Clause issue would be presented if we were to accept the INS' submission that the 1996 statutes have withdrawn the power [to issue a writ of habeas corpus] from federal judges and provided no adequate substitution for its exercise") (brackets in original). Moreover, since Petitioners raise a purely legal issue, namely whether federal law allows the INS to send removable aliens to a country that has not agreed to accept them, habeas corpus is the correct vehicle for addressing the instant petition. See St. Cyr, 533 U.S. at 308.
"Article I, §§ 9, cl. 2, of the United States Constitution provides that `The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.' The St. Cyr Court noted that `[b]ecause of that Clause, some `judicial intervention in deportation cases' is unquestionably `required by the Constitution.' St. Cyr, 533 U.S. at 300 (quoting Heikkila v. Barber, 345 U.S. 229, 235 (1953))." Farah, 2002 WL 31866481, at *3 n. 5.
Furthermore, the Court finds Respondent's reliance on Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) misplaced.AADC was not a habeas corpus case, and has no bearing on the case at the bar. See Jama, 2002 WL 507046, at *3
C. Whether Removal is Consistent With 8 U.S.C. § 1231(b)(2)
The crux of the Parties' dispute is whether Petitioners can be returned to Somalia when there is no proper government authority to accept them. Respondent argues that as long as removed aliens are permitted to deplane in Somalia, they are "accepted" into that country. Petitioners' removals were ordered under the authority of 8 U.S.C. § 1231(b)(2)(E) which establishes a three step process for determining where an alien should be sent once a final removal order has been entered against him. At step one, the alien may designate a country to which he wishes to be removed.See 8 U.S.C. § 1231(b)(2)(A). That request will be granted unless, inter alia, the country selected is unwilling to accept him. See id. § 1231(b)((2)(B),(C). If removal cannot be accomplished at step one, at step two the INS is directed to remove the alien to the country of which he is a citizen, provided that the country is willing to accept him. See § 1231(b)(2)(D). The section provides that:
[i]f an alien is not removed to a country designated under subparagraph (A)(i), the Attorney General shall remove the alien to a country of which the alien is a subject, national, or citizen unless the government of the country —
(i) does not inform the Attorney General or the alien finally, within thirty days after the date the Attorney General first inquires or within another period of time the Attorney General decides is reasonable, whether the government will accept the alien into the country; or
(ii) is not willing to accept the alien into the country.8 U.S.C. § 1231(b)(2)(D).
Step three provides for additional removal options should the INS be unable to affect removal under the previous provisions. Specifically, the Attorney General shall remove the alien to any of the following countries:
(i) The country from which the alien was admitted to the United States.
(ii) The country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States.
(iii) The country in which the alien resided before the alien entered the country from which the alien entered the United States.
(iv) The country in which the alien was born.
(v) The country that had sovereignty over the alien's birthplace when the alien was born.
(iv) The country in which the alien's birthplace is located when the alien is ordered removed.
(vii) If impracticable, inadvisable, or impossible to remove the alien to each country described in the previous clause of this subparagraph, another country whose government will accept the alien into that country.8 U.S.C. § 1231(b)(2)(E). The Parties agree that the propriety of Petitioners' removal to Somalia must be determined by examining step three of the process, and whether Petitioners can be removed to Somalia pursuant to § (b)(2)(E)(iv) which pertains to removal to the country in which Petitioners were born. Specifically, the Court must decide if the acceptance requirement articulated in step two is also a requirement at step three.
The Court finds that acceptance is required at all three steps of the removal process outlined in 8 U.S.C. § 1231(b)(2). As the Jama court reasoned:
the acceptance requirement included in step two of the country selection process would be rendered meaningless if the INS in step three could send an alien to the country in which he was born without obtaining that country's consent. The Magistrate Judge noted that a removable alien will almost invariably be a "subject, national or citizen" of the country in which he was born. As a result, the acceptance requirement of § 1231(b)(2)(D) is easily circumvented by § 1231(b)(2)(E)(iv) if the latter clause is read not to require acceptance. Therefore, in order to render meaningful force to all the portions of the statute, the Magistrate Judge concluded that the acceptance requirement listed in the seventh clause of step three, § 1231(b)(2)(E)(vii), was meant to apply to all the clauses listed in § 1231(b)(2)(E), including § 1231(b)(2)(E)(iv).Jama, 2002 WL 507046, at *5 (adopting the Report and Recommendation of the Magistrate Judge). The Court can find no other way to read the statute and not create a situation in which the acceptance requirement is a nullity. If the Court were to adopt Respondent's interpretation, a foreign government could actually deny acceptance of a removable alien, but the alien could somehow be "dropped" in the same country if that removal met the requirements of another subpart.
Respondents would have the Court consider a country's failure to complain or otherwise object to a removed alien's presence in their country as forms of acceptance, as long as the alien is not "barred from deplaning . . . or otherwise expelled." (Resp. Response Pet. Habeas Corpus at 34.) The Jama court properly rejected this interpretation of the statute. See Jama, 2002 WL 507046, at *7 ("The silence of a non-functioning government in a lawless territory — with grave risks to the deported alien — simply cannot constitute `acceptance' under § 1231(b)(2).") Courts must interpret statutes so as to give effect to all the statute's provisions. See Herman v. Associated Elec. Co-op, Inc., 172 F.3d 1078, 1081 (8th Cir. 1999) (citations omitted). The above interpretation is the only way to interpret the statute and have all its provisions make sense.
Furthermore, the above interpretation is consistent with case law interpreting 8 U.S.C. § 1253(a), the statutory predecessor of § 1231(b)(2). See Jama, 2002 WL 507046 at *5 (citations omitted). In United States ex rel. Tom Man v. Murff, 246 F.2d 926, 928 (2nd Cir. 1959), the Second Circuit interpreted § 1253(a) in the same way as the Jama andFarah courts interpreted § 1231(b)(2)(E) (noting that the country must be "willing to accept" aliens "into its territory") (quoting § 243(a)). Respondent takes issue with Petitioners' reliance on Tom Man, arguing that the case "ignored the plain meaning of the statute." (Resp. Response Pet. Habeas Corpus at 38.) The Court finds this argument misplaced. As the Jama court stated, there is "no meaningful distinction between the two statutes." Jama, at *6. Therefore, Petitioners' reliance on Tom Man is appropriate.
Finally, Respondent argues that the Court should adopt the reasoning of BIA's decision in Matter of Niesel, 10 I N. Dec. 57, 1962 WL 12904 (BIA 1962). (Resp. Reply at 15.) Niesel concluded that acceptance from the destination country is not necessary. The Jama court addressed this argument and concluded that Niesel need not be extended under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984) because courts need only defer to agency interpretations of statutes when Congressional intent is ambiguous, and this statute is unambiguous. See Jama, 2002 WL 507046 at *6. As stated above, the Court agrees that § 1231(b)(2) is unambiguous. Therefore, deference to the agency's interpretation is not required. See Chevron, 467 U.S. at 843 (stating that when Congress' intent is clear, courts must give effect to that intention, regardless of any agency interpretation).
The Court also finds Respondent's reliance on Niesel misplaced becauseNiesel did not specifically address the issue of final acceptance of a removed alien. Rather, Niesel only addressed whether the INS was required to make an initial inquiry of the country to which an alien would be returned. Niesel did not reach the issue of the country's final acceptance of the alien. See Ali No. C02-2304P at 15. More importantly, Respondent's argument that prior acceptance is not required is at odds with the INS' own regulations which state that "the INS shall conduct a custody review of an alien . . . where the alien's removal, while proper, cannot be accomplished during the [post-removal] period because no country currently will accept him." 8 C.F.R. § 241.4(k)(1)(i). This regulation makes it clear that acceptance is a goal in removal proceedings.
In conclusion, the Court finds that Petitioners cannot be removed to Somalia because Somalia does not have a functioning government which can accept them either explicitly or constructively. Although acceptance based on "custom and practice showing mutual agreement between two countries" may be sufficient under the statute, dropping an alien into a country with no working government and calling the failure of anyone to complain about the alien's presence in the country "acceptance" stretches the logical bounds of even tacit acceptance to untenable levels. Jama, 2002 WL 507056 at *7 Therefore, this part of Petitioners' petition should be granted. Petitioners should not be removed to Somalia when there is no functioning government to accept them.
D. Whether Petitioners Must Be Released From INS Custody
An alien who is subject to a final order of removal is normally held in INS custody during a 90-day statutory "removal period" during which the INS usually effects the alien's removal. See Zadvydas v. Davis, 533 U.S. 678, 682 (2001). Detention during this 90-day period is mandatory. See 8 U.S.C. § 1231(a)(2) ("During the removal period, the Attorney General shall detain the alien.") (emphasis added). If the government fails to remove the alien during the 90-day period, further detention is authorized in certain circumstances.
An alien ordered removed [1] who is inadmissible . . . [2] [or] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision.Zadvydas, 533 U.S. at 682 (quoting 8 U.S.C. § 1231(a)(6)).
In Zadvydas, the Supreme Court held that admitted aliens, aliens who enter this country either legally or illegally, are entitled to certain due process protections. See id. at 693-94. ("[A]liens who have once passed through our gated, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law") (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)). Specifically, the Zadvydas court held that § 1231(a)(6) does not authorize the INS to keep removable aliens in post-removal-detention for a period beyond that which is "reasonably necessary to bring about the alien's removal from the United States."Id. at 689. "[The statute] does not permit indefinite detention." Id. TheZadvydas court concluded that when "removal is no longer reasonably foreseeable, continued detention is no longer authorized by the statute."Id. at 699. The Court found six months to be a presumptively reasonable period of detention. See id. at 701 (stating that Congress "doubted the constitutionality of detention for more than six months") (citations omitted). If, after this six month period has expired, the alien demonstrates that there is no significant likelihood of removal in the reasonably foreseeable future, he must be released subject to reasonable conditions. See id. at 694, 701.
Petitioners argue that under Zadvydas, they must be released because there is no significant likelihood they can be removed in the reasonably foreseeable future. Respondent asserts that Petitioners' detentions are appropriate under Zadvydas.
1. Timing of Petitioners' Removal Periods
There are two timing issues which the Court must address before reaching the merits of Petitioners' individual requests. The first is when the Petitioners' post-removal order detention periods began. The second is whether Zadvydas authorized a post-removal order detention period of six or nine months.
a. Whether Petitioner's Post-Removal Order Detention Periods Began When They Were Taken Into INS Custody
The Parties dispute the time when some of Petitioners' removal periods began. 8 U.S.C. § 1231(a)(1) calculates the beginning of the 90-day mandatory removal period in the following way:
The removal period begins on the latest of the following:
(i) The date the order of removal becomes administratively final;
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order.
* * *
The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien . . . conspires or acts to prevent the alien's removal subject to an order of removal.8 U.S.C. § 1231(a)(1)(B),(C).
The Court has examined the record and finds that Petitioners' post-removal detentions began on the following dates:
(1) Gama Omar — May 17, 2002, the date he withdrew his appeal of his removal order under the name Adaan Colow. Gama Omar has been in INS detention since February 28, 2002. See Part 1.A., supra.
(2) Abdulkadir Mohamed — January 29, 2002, the date he was ordered removed. Abdulkadir Mohamed has been in INS detention since October 2, 2001. See Part I.B., supra.
(3) Abdi Mohamed — March 14, 2001, the day the BIA denied his motion to reopen his removal proceedings. Abdi Mohamed has been in INS detention since June 7, 2002. See Part I.C., supra.
(4) Mahad Omar — November 19, 2002, the date the Eighth Circuit denied his petition for a rehearing en banc. Mahad Omar has been in INS detention since May 19, 2000, not including the period of time he was in Sweden before
Swedish officials returned him to the INS' custody. See Part I.D., supra.
Although Gama Omar's first removal order became final on December 12, 1997, the Court will use the later date as the removal date. Had Colow's appeals been successful, the INS would not have executed Gama Omar's earlier removal order either. Gama Omar bought himself time by assuming a false identity and pursuing redress through the legal system. It is only fair that Gama Omar be required to use the later date when calculating his detention.
Petitioners would have the Court calculate the 90-day removal period from the dates that Petitioners were taken into INS custody. That argument is misplaced. The date of initial custody is not to be considered when calculating the 90-day removal period. Up until Petitioners were subject to final removal orders, any time they spent in INS custody was not part of their removal periods. See Badio v. United States, 172 F. Supp.2d 1200, 1204 (D. Minn. 2001) (noting the difference between pre-removal order detention and post-removal order detention and concluding that there is no presumptive limit on pre-removal order detention) (citing Zadvydas, 533 U.S. at 697). The purpose of the period is to facilitate an alien's removal. An alien cannot be removed until he is subject to a removal order.
b. Whether the Presumptively Reasonable Six Month Period Begins After the 90-Day Removal Period
The Zadvydas decision has left some questions regarding calculation of the presumptively reasonable six month confinement period. Specifically, courts are split as to whether this period begins after the 90-day removal period, thereby making the actual presumptively reasonable detention period nine months; or whether the six month period includes the 90-day removal period.
The majority of courts addressing the issue have concluded that the Supreme Court authorized a total of six months of post-removal order confinement. See Doan v. INS, 311 F.3d 1160, 1162 (9th Cir. 2002) (stating that the Zadvydas court limited the presumptively reasonable duration of detention to six months); Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002); Patel v. Zemski, 275 F.3d 299, 309 (3rd Cir. 2001) (stating that post-removal-order detention is generally limited to no more than six months); Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991-92 (7th Cir. 2001); Meach v. Ashcroft, No. 3:02CV938 (GLG), 2002 WL 31095297, at *1 (D. Conn. July, 30, 2002); Naijar v. Ashcroft, 186 F. Supp.2d 1235, 1242 (S.D. Fla. 2002); Fahim v. Ashcroft, 227 F. Supp.2d 1359, 1363 (N.D. Ga. 2002); Ablahad v. Ashcroft, No. 02 C 3263, 2002 WL 31027952, at *2 (N.D. Ill. Sept. 6, 2002); Agbada v. Ashcroft, No. CIV.A. 02-30098-MAP, 2002 WL 1969660, at *1 (D. Mass. Aug. 22, 2002);Herrero-Rodriguez v. Bailey, Civil No. 01-4472 (JBS), 2002 WL 31830684, at *3 (D. N.J. Dec. 18, 2002); Pan v. Ashcroft, No. CIV.A. 02-2712, at *2 (E.D. Penn. July, 8, 2002); Do Vale v. INS, No. 01-216-ML, 01-507-ML, 2002 WL 1455347, at *9 (D. R.I. June 25, 2002); Lozano-Castaneda v. Garcia, No. EP-02-CA-0189-DB, 2002 WL 31939264, at *6 (W.D. Tex. Dec. 26, 2002); Lema v. INS, 214 F. Supp.2d 1116, 1117 (W.D. Wash. 2002);Fernandez-Fajardo v. INS, 193 F. Supp.2d 877, 884 (M.D. La. 2001);Vanegas v. Smith, 179 F. Supp.2d 1205, 1208 (D. Or. 2001). But see Welch v. Ashcroft, 293 F.3d 213, 227 (4th Cir. 2002) (stating that petitioner's fourteen month confinement was five months longer than the § 1231 90-day period and the six month Zadvydas period combined); Seretse-Khama v. Aschcroft, 215 F. Supp.2d 37, 45 (D. D.C. 2002); Janvier v. INS, 174 F. Supp.2d 430, 435 (E.D. Vir. 2001).
Among the small minority of cases finding that the presumptively reasonable detention period is nine, rather than six months is Borrero v. Aljets, 178 F. Supp.2d 1034, 1040-41 (D. Minn. 2001). For two reasons, the Court declines to adopt the view of the Borrero court. First, since the petitioner in Borrero had been in INS custody for a year, the court did not address the timing issues. The court merely recited its understanding of Zadvydas as background information. See id. Second, the Court finds that a total six month period is what theZadvydas Court contemplated when fashioning the presumptively reasonable period. The Court stated the following:
While an argument can be made for confining any presumption to 90 days, we doubt that when Congress shortened the removal period to 90 days in 1996 it believed that all reasonably foreseeable removals could be accomplished in that time. We do have reason to believe, however, that Congress previously doubted the constitutionality of detention for more than six months. See Juris. Statement in United States v. Witkovich, O.T. 1956, No. 295, pp. 8-9. Consequently, for the sake of uniform administration in the federal courts, we recognize that period. 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. And for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink.Zadvydas, 533 U.S. at 701. This statement leads the Court to conclude that the presumptive period is a total of six months, not a total of nine months. The Zadvydas Court discussed "detention for six months," not "detention for nine months." Therefore, the Court will use a total of six months when calculating the timing of Petitioners' individual cases.
2. Abdulkadir Mohamed
Abdulkadir Mohamed's post-removal detention began on January 29, 2002. Therefore, his six month post-removal-order detention period ended on July 29, 2002. Respondent argues that it may hold Abdulkadir Mohamed in continued detention because he poses a risk to the community due to his criminal background. However, that fact is not dispositive. The petitioners in Zadvydas both had criminal backgrounds, including gang activity. See Zadvydas, 533 U.S. at 684. Zadvydas merely held that an alien may be held in confinement beyond the six month period until "there is no significant likelihood of removal in the reasonably foreseeable future." Id. at 701. The purpose of post-removal detention is to have an alien available when it comes time to actually remove him to another country. See id. at 690. In ninety-three pages of briefing, Respondent proffers no evidence of either on-going efforts to obtain acceptance from Somalia regarding Petitioners' removal to that country, or of the likelihood that such acceptance will be possible in the near future. Thus, there is no evidence before the Court which allows it to conclude that there is a significant likelihood of removal in the reasonably foreseeable future. If Respondent can provide such evidence, it must do so when filing objections to this Report and Recommendation. In the absence of such evidence, the Court finds that Abdulkadir Mohamed must be released from INS detention.
Abdulkadir Mohamed has served his criminal sentences. Therefore, but for the removal order, he would not be confined today. The Court finds that Abdulkadir Mohamed must be released from INS custody pending INS attempts to affect his removal to Somalia.
Of course, this does not mean that Abdulkadir Mohamed will be a "free man by any means." Borrero, 178 F. Supp.2d at 1044. The INS may still impose whatever terms and conditions on Abdulkadir Mohamed's release it deems appropriate, and retains the power to incarcerate Abdulkadir Mohamed for violating those conditions. See Zadvydas, 533 U.S. at 694 (citing 8 U.S.C. § 1231(a)(3) and 1253). Therefore, the Court recommends that if the District Court adopts this Report and Recommendation, Abdulkadir Mohamed should be granted conditional release from INS custody within two days of that decision.
3. Gama Omar and Abdi Mohamed
Gama Omar's post-removal detention began on May 17, 2002. Therefore, his six month post-removal-order detention period ended on November 17, 2002. Gama Omar filed his petition on June 27, 2002.
Abdi Mohamed's post-removal detention began on June 7, 2002, the date he was taken into INS custody after his removal order was final. Therefore, his six month post-removal-order detention period ended on December 7, 2002. Abdi Mohamed filed his petition on June 27, 2002.
Respondent proffers three arguments for continued detention of Gama Omar and Abdi Mohamed. First, Respondent argues that Zadvydas does not apply to Gamma Omar and Abdi Mohamed because they were never admitted to the United States. As an alternative argument, Respondent asserts that 8 U.S.C. § 1231 allows it to extend Petitioners' 90-day removal periods because by filing the instant petitions, they acted to prevent their removals, which tolled the 90-day removal period. Respondent further argues that Petitioners must be detained for the presumptive six month period prior to filing their habeas corpus petitions. With respect to Abdi Mohamed, Respondent also asserts that there may be an opportunity to remove him to the Netherlands. (Resp. Response Pet. Habeas Corpus at 71.)
a. Whether Zadvydas Applies to Gama Omar and Abdi Mohamed
Respondent argues that Abdi Mohamed and Gama Omar were never admitted to the United States, and thus Zadvydas does not apply to them. For support, Respondent relies on Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953). In Mezei, the Supreme Court held that the Fifth Amendment does not prevent an excludable alien from being detained by the INS indefinitely. See id. at 215-16.
The Zadvydas court left open the question of whether non-admitted aliens can be detained beyond the presumptive six month post-removal detention period. See id. at 682. However, the Zadvydas Court took great pains to find that Mezei is still good law. See id. at 693. Petitioners would have the Court adopt the position of the court in Borrero v. Aljets, INS, 178 F. Supp.2d 1034, 1042 (D. Minn. 2001). The Borrero court found that Zadvydas applies to excludable/inadmissible aliens as well as to removable aliens. See id. at 1042-43.
A review of the case law reveals that Borrero is a decidedly minority opinion. The vast majority of courts have concluded that inadmissible aliens are not afforded the same rights as removable aliens who have gained entry into this county. See Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991 (7th Cir. 2001) (holding that continued detention of excludable aliens is allowed because "the Fifth Amendment does not offer [excludable aliens] the same protections as resident aliens"); Fernando-Fajardo v. INS, 193 F. Supp.2d 877, 886-87 (M.D. La. 2001) (finding that indefinite detention of excludable alien does not violate substantive due process and that Zadvydas is not applicable); Herrero-Rodriguez v. Bailey, Civil No. 01-4442 (JBS), 2002 WL 31830684, at *4 (D. N.J. Dec. 18, 2002); Pan v. Ashcroft, No. CIV.A. 02-2712, 2002 WL 1497115, at **2-3 (E.D. Pa. July 8, 2002) ("The Zadvydas Court confirmed that excludable/inadmissible' aliens seeking entry have no constitutional right to be at large in this country, and may be detained indefinitely."); Rollaro-Suarez v. Pratt, No. 3-01-CV-1419-G, 2002 WL 1512026, at *1 (N.D. Tex. Nov. 21, 2001);Hernandez Nodarse v. United States, 166 F. Supp.2d 538, 545 (S.D. Tex. 2001). But see Xi v. INS, 298 F.3d 832, 834 (9th Cir. 2002).
The Court finds this conclusion in concert with Zadvydas which stated that it was only addressing the issue of aliens who were once admitted to the United States, but were then subsequently ordered removed. See Zadvydas, 533 U.S. at 682 ("Aliens who have not yet gained initial admission to this country would present a very different question.") TheZadvydas Court also noted that "[t]he distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law." Id. at 693 (citation omitted). When affirming the continued viability of Mezei, the Zadvydas Court reasoned that the distinction between an admitted alien and one who was not admitted "made all the difference." Id. These statements lead the Court to conclude that the Zadvydas Court did not intend to have its holding apply to those who never entered the country, but who were instead "stopped at the border." Id. at 693 (quoting Mezei, 345 U.S. at 213, 215).
Accordingly, the Court concludes that Zadvydas does not apply to Gama Omar and Abdi Mohamed. See Perez-Leal v. INS, No. CIV 01-1577, 2002 WL 1347750, at *2 (D. Minn. June 13, 2002) ("Because the Court in Zadvydas indicated that Mezei was still good law, the Magistrate Judge appropriately found that the Zadvydas decision should be construed narrowly to apply to resident aliens but not excludable aliens.") (citation omitted). Gama Omar and Abdi Mohammed are excludable aliens subject to indefinite detention. The Court recommends that this part of the petition be denied.
b. Respondent's Alternative Arguments
Since the Court's conclusion that Zadvydas does not apply to Gama Omar Abdi Mohamed dispenses with their requests, the Court need not reach the Parties' alternative arguments.
4. Mahad Omar
Mahad Omar's post-removal detention began on November 19, 2002, the date the Eighth Circuit denied his petition for a rehearing en banc. Therefore, his 90-day removal period will end on February 19, 2003, and his six month post-removal-order detention period will end on May 19, 2003. Mahad Omar joined this petition on October 8, 2002.
The Court finds Mahad Omar's petition premature. Detention during the 90-day removal period is mandatory. Mahad Omar is still within that period. Moreover, Zadvydas clearly states that the INS has six months within which to attempt removal. See Zadvydas, 533 U.S. at 701. Although the Court finds it unlikely that the situation in Somalia will change within the next four months, the INS must be given the full time allowed by statute and case law to attempt Mahad Omar's removal. Mahad Omar must remain in INS custody until May 19, 2003. At that time, his petition for release from custody pending removal will be ripe for the Court's consideration, and he may present evidence that there is still no significant likelihood of his removal to Somalia. See Zadvydas, 533 U.S. at 701. Therefore, the Court recommends that Mahad Omar's request for conditional release from INS custody at this time be denied.
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY RECOMMENDED:
(1) Petitioners' Amended Consolidated Petition for Writ of Habeas Corpus (Doc. No. 11) should be GRANTED IN PART and DENIED IN PART, as set forth in the body of this Report and Recommendation;
(2) No Petitioner should be removed to Somalia, a country without a working government;
(3) Petitioner Abdulkadir Sharif Abdi Mohamed should be released from detention and placed on conditional release, which can be revoked for violating the conditions imposed by the INS;
(4) Petitioners Ali Gama Omar and Mohamed Abdi Mohamed should remain in INS custody as inadmissible aliens; and
(5) Petitioner Mahad Mohamed Omar should remain in INS custody until May 17, 2003, at which time he may present evidence that there is no significant likelihood of his removal in the reasonably foreseeable future.
Pursuant to D. Minn. LR 72.1(c)(2), any party may object to this Report and Recommendation by film written objections with the Clerk of Court and serving all parties by February 24, 2003. The brief must specifically identify those portions of this Report to which objections are being made and the basis of those objections. A party may respond to the objecting party's brief within ten days after being served with it. All briefs filed under this rule shall be limited to ten pages. A judge shall make a de novo determination of those portions to which objection is made. Failure to comply with this procedure may operate as a forfeiture of the objecting party's right to seek review in the Court of Appeals.