Mohammed Iddrisu v. Jeh C. Johnson et al

Filing 14

ORDER DENYING HABEAS PETITION AND DISMISSING ACTION WITHOUT PREJUDICE by Magistrate Judge Alexander F. MacKinnon. (See document for details). (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No. SA CV 17-00038 AFM

MOHAMMED IDDRISU,
Petitioner,
v.
JOHN F. KELLY, et al.,

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Respondents.

ORDER DENYING HABEAS
PETITION (28 U.S.C. § 2241) AND
DISMISSING ACTION WITHOUT
PREJUDICE

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INTRODUCTION

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On January 9, 2017, petitioner filed a Petition for Writ of Habeas Corpus by

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a Person in Federal Custody (28 U.S.C. § 2241). Petitioner, a detainee at the Theo

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Lacy Facility in Orange, California, has been detained since March 2016 pending

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his removal from the United States. In his sole ground for federal habeas relief,

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petitioner claims that he should be released from detention with reasonable

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conditions because there is no significant likelihood of removal in the reasonably

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foreseeable future.

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The parties have consented to the jurisdiction of the undersigned Magistrate

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Judge under 28 U.S.C. § 636(c). As discussed below, the Petition is denied.

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However, the dismissal of this action is without prejudice to petitioner refiling a

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habeas petition in this Court if it later appears that removal is no longer reasonably

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foreseeable.

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BACKGROUND

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Petitioner is a native and citizen of Ghana.

On September 16, 2015,

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petitioner applied for admission to the United States without valid documentation at

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the San Ysidro Port of Entry in San Diego, California. (ECF No. 8-1 at 2.) He was

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processed for expedited removal, and was taken into the custody of Immigration

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and Customs Enforcement (“ICE”) on September 25, 2016. (Id.) An immigration

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judge issued an order of removal that became final on March 28, 2016. (Id.)

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Petitioner remains in detention since that date.

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On January 9, 2017, petitioner filed this Petition because he had been

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detained for more than six months since his removal order became final on

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March 28, 2016. (ECF No. 1.) Petitioner’s claim is based on Zadvydas v. Davis,

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533 U.S. 678, 701 (2001), in which the Supreme Court held that a presumptively

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reasonable period of detention in order to effectuate removal from the United States

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was six months.

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On February 9, 2017, respondent filed an Answer which included a

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declaration by David Scarberry, a deportation officer familiar with petitioner’s case.

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(ECF No. 8.) According to Officer Scarberry’s initial declaration, on January 26,

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2017, officials for ICE requested an interview of petitioner (and others) for travel

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documents to Ghana, and the Consulate General of Ghana committed to conducting

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the interviews within 30 days. (ECF No. 8-1 at 2.)

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On March 6, 2017, petitioner filed a Reply stating, in part, that relief should

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be granted because there had been no definitive answer from the target country after

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several months as to whether it would issue travel documents. (ECF No. 10 at 5.)

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On March 9, 2017, the Court ordered respondent to file an updated statement.

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On March 23, 2017, respondent filed a statement which included a second
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declaration by Officer Scarberry. (ECF No. 13.) According to that declaration, the

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Consul General of Ghana advised by an email dated on March 14, 2017, that a

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travel document for petitioner would be issued within a month. (ECF No. 13-1 at

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2.) Once the travel document is issued, according to Officer Scarberry, removal

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should take place in about a month. (Id.)

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DISCUSSION

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Post-removal-order detention is governed by 8 U.S.C. § 1231(a). Section

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1231(a)(1) requires the Attorney General to attempt to effectuate removal within a

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90-day “removal period.” During the removal period, the alien must be detained.

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8 U.S.C. § 1231(a)(2). Under 8 U.S.C. § 1231(a)(1)(B), the removal period begins

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on the latest of the following:
(i)

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The date the order of removal becomes administratively

(ii)

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If the removal order is judicially reviewed and if a court

final.

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orders a stay of the removal of the alien, the date of the court’s final

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order.

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(iii)

If the alien is detained or confined (except under an

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immigration process), the date the alien is released from detention or

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confinement.

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Here, it is undisputed that under subsection (i), the removal period in this

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case began on March 28, 2016, when petitioner’s order of removal became

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administratively final.

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“If the alien is not removed during the removal period, continued detention is

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authorized, in the discretion of the Attorney General, by § 1231(a)(6).” Diouf v.

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Napolitano, 634 F.3d 1081, 1085 (9th Cir. 2011).

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detention beyond the 90-day removal for an inadmissible or criminal alien, or one

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whom the Attorney General has determined will be a risk to the community or
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This provision authorizes

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unlikely to comply with the order of removal. See 8 U.S.C. § 1231(a)(6). Here,

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petitioner is inadmissible because, according to Officer Scarberry’s declaration,

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petitioner applied for admission without valid documentation.

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§ 1182(a)(7) (aliens lacking a valid entry document are inadmissible). Petitioner

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does not dispute his inadmissibility, and thus does not dispute his detention beyond

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the initial 90-day removal period for a reasonable period while the government

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effectuates his removal.

See U.S.C.

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In Zadvydas, 533 U.S. at 701, the Supreme Court held that the government

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had the authority under § 1231(a)(6) to detain aliens for a “presumptively

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reasonable period” of six months. “After this 6-month period, once the alien

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provides good reason to believe that there is no significant likelihood of removal in

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the reasonably foreseeable future, the Government must respond with evidence

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sufficient to rebut that showing.” Id.

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Based on Officer Scarberry’s declaration that on March 14, 2017, the Consul

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General of Ghana affirmatively stated it would issue a travel document for

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petitioner within a month, petitioner has not met his initial burden under Zadvydas.

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Where the evidence shows that the target country has granted (or is merely

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reviewing or processing) an application for travel documents, federal habeas courts

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have repeatedly found that an alien has failed to provide a good reason to believe

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there is no significant likelihood of his removal in the reasonably foreseeable

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future. See, e.g., Mulla v. Adducci, 178 F. Supp. 3d 573, 576 (E.D. Mich. 2016);

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Jiang Lu v. U.S. ICE, 22 F. Supp. 2d 839, 844 (N.D. Ohio 2014); Fofana v. Holder,

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947 F. Supp. 2d 329, 334 (W.D.N.Y. 2013); Kassama v. DHS, 553 F. Supp. 2d 301,

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306-07 (W.D.N.Y. 2008); see also Jaiteh v. Gonzales, 2008 WL 2097592, at *3

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(D. Minn. 2008) (where a country “is acting on an application for travel documents,

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most courts conclude the alien fails to show no significant likelihood of removal”)

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(citing Khan v. Gonzales, 481 F. Supp. 2d 638, 642 (W.D. Tex. 2006); Nma v.

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Ridge, 286 F. Supp. 2d 469, 474-75 (E.D. Pa. 2003); Khan v. Fasano, 194 F. Supp.
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2d 1134, 1136-37 (C.D. Cal. 2001); and Fahim v. Ashcroft, 227 F. Supp. 2d 1359,

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1366-67 (N.D. Ga. 2002)). Petitioner therefore is not entitled to federal habeas

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relief for his claim that his continued detention pending his removal from the

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United States is unreasonable.

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Finally, although petitioner cannot currently meet his initial burden of

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showing no significant likelihood of his removal in the reasonably foreseeable

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future, this does not mean that his circumstances cannot change. This action is

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dismissed without prejudice to petitioner filing another habeas petition if it later

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appears that his removal is no longer reasonably foreseeable. See Mulla, 178

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F. Supp. 3d at 576; Fofana, 947 F. Supp. 2d at 335; Kassama, 553 F. Supp. 2d at

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307.

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ORDER

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It therefore is ordered that the Petition is denied and that this action is
dismissed without prejudice.

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DATED: March 27, 2017

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ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE

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