IBRAHIM v. LYNCH, et al
REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus. ORDER denying 2 MOTION to Appoint Counsel. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 2/27/2017. (efw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ABDOUL KARIM IBRAHIM,
LORETTA LYNCH, et al.
CASE NO. 4:16-cv-175-CDL-MSH
28 U.S.C. § 2241
REPORT AND RECOMMENDATION
Presently pending before the Court is Petitioner’s petition for writ of habeas
corpus (ECF No. 1) and motion to appoint counsel (ECF No. 2). For the reasons
explained below, it is recommended that the Petition be dismissed as premature.
The Court received Petitioner’s application for habeas relief pursuant to 28 U.S.C.
§ 2241 on May 13, 2016. Therein Petitioner asserts that he should be released from
Immigration and Customs Enforcement (“ICE”) custody or afforded a bond hearing. Pet.
for Writ of Habeas Corpus 8.
Petitioner, a native and citizen of Niger, was admitted to the United States on
November 30, 2000 with a visitor’s visa valid until February 28, 2001. Pet. 4. Petitioner
remained in the United States and on July 6, 2015, Petitioner pled guilty to felony
counterfeiting. Pet. 4; Respts.’ Opp’n 2. He was taken into ICE custody on September 9,
2015. Pet. 3, 4.
On May 16, 2016, the Court ordered Respondents to respond to Petitioner’s
petition. Respondents filed their Opposition to Petition for Writ of Habeas Corpus on
July 15, 2016. Petitioner’s final order of removal was on June 23, 2016. Respts.’ Opp’n
3. Petitioner submitted a second petition and filing fee on February 15, 2017 (ECF Nos.
19, 20). A new case was opened for Petitioner on February 22, 2017.
In Zadvydas v. Davis, 533 U.S. 678, 699-700 (2001), the Supreme Court found
that section 241(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(a)
authorizes detention after entry of an administratively final order of deportation/removal
for a period “reasonably necessary” to accomplish the alien’s removal from the United
States. The Court recognized six months as a presumptively reasonable period of time to
allow the government to accomplish an alien’s removal. Id. at 701. The Court of
Appeals for the Eleventh Circuit explained that to be released pursuant to the ruling in
Zadvydas, an alien must show: “(1) that the six-month period, which commences at the
beginning of the statutory removal period, has expired when the § 2241 petition is filed;
and (2) evidence of a good reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future.” Gozo v. Napolitano, 309 F. App’x 344,
346 (11th Cir. 2009); see also Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir.
2002) (“[I]n order to state a claim under Zadvydas the alien . . . must show post-removal
detention in excess of six months [and] also provide evidence of a good reason to believe
that there is no significant likelihood of removal in the reasonably foreseeable future.”).
Respondents’ assert that Petitioner’s petition is premature under Zadvydas. An IJ
ordered Petitioner removed on June 23, 2016. Petitioner waived the appeal and the order
of removal is administratively final. Resp’ts’ Opp’n 3.
Here, the six-month presumptively reasonable removal period began when
Petitioner was ordered removed on June 23, 2016. Resp’ts’ Opp’n Ex. 1, ECF No. 13-1.
Petitioner had not been detained for more than six months post final order of removal at
the filing of this petition. Thus, Petitioner could not make a showing as required in
Akinwale and Zadvydas at the time his petition was filed, and his petition for habeas relief
should be dismissed. There is prejudice harm to Petitioner, as he has already filed his
new petition in Civil No. 4:17-cv-46. Petitioner’s motion for the appointment of counsel
(ECF No. 2) is denied as moot.
For the foregoing reasons, it is recommended that Petitioner’s application for
habeas relief be dismissed without prejudice. Petitioner’s motion for the appointment of
counsel (ECF No. 2) is denied as moot. Pursuant to 28 U.S.C. § 636(b)(1), the parties
may serve and file written objections to this Recommendation, or seek an extension of
time to file objections, within fourteen (14) days after being served with a copy hereof.
The district judge shall make a de novo determination of those portions of the
Recommendation to which objection is made. All other portions of the Recommendation
may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a]
party failing to object to a magistrate judge’s findings or recommendations contained in a
report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to challenge on appeal the district court’s order based on unobjected-to
factual and legal conclusions if the party was informed of the time period for objecting
and the consequences on appeal for failing to object. In the absence of a proper objection,
however, the court may review on appeal for plain error if necessary in the interests of
SO RECOMMENDED, this 27th day of February, 2017.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE
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