Mohammed v. Unknown

Filing 14

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Mohammed's 1 Petition, and DIRECT the Clerk to CLOSE this case. It is further RECOMMENDED that the Court DENY Mohammed leave to proceed in forma pauper is on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 9/11/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/28/2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

SANI MOHAMMED,
Petitioner,

CIVIL ACTION NO.: 5:17-cv-49

v.
PATRICK GARTLAND,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Sani Mohammed (“Mohammed”), who is currently in the physical custody of
United States Immigration and Customs Enforcement (“ICE”) at the Folkston ICE Processing
Center in this District, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.
(Doc. 1.) After the Court ordered service, Respondent filed a Response arguing that the Court
should dismiss the Petition. (Doc. 13.) For the reasons which follow, I RECOMMEND that the
Court DISMISS WITHOUT PREJUDICE Mohammed’s Petition, (doc. 1), DIRECT the Clerk
of Court to CLOSE this case, and DENY Mohammed in forma pauperis status on appeal.
BACKGROUND
Mohammed, a native and citizen of Ghana, applied for admission to the United States on
May 6, 2016, at the San Ysidro, California, port of entry by claiming a fear of returning to his
country. (Doc. 8-1, p. 1.) After referral for a credible fear interview, an Asylum Pre-Screening
Officer with the United States Citizenship and Immigration Services referred Mohammed’s case
to an Immigration Judge. (Id. at 2.) On October 12, 2016, the Immigration Judge ordered
Mohammed removed to Ghana. (Id.) Though Mohammed reserved his right to appeal, he did

not file an appeal, so the removal order became administratively final when the deadline to file
an appeal elapsed thirty (30) days later on November 13, 2016. (Id.)
However, Mohammed has not yet been removed to Ghana. On November 14, 2016, ICE
mailed a request to the Embassy of Ghana for issuance of travel documents, but Ghana has yet to
issue those documents. (Id. at pp. 2–3.) Respondent states that the issuance of the travel
documents was delayed due to presidential elections in Ghana. (Id.) Thus, ICE resubmitted the
travel document request on January 5, 2017. (Id. at pp. 4–5.)
ICE has taken other actions to facilitate Mohammed’s removal. ICE conducted reviews
of Mohammed’s custody conditions on February 22, 2017, and May 22, 2017. (Id. at p. 4.)
After those reviews, ICE found that Mohammed’s removal was likely in the reasonably
foreseeable future, and thus, decided to continue Mohammed’s detention. (Id.) ICE has also
issued several documents to Mohammed advising him of his responsibilities to assist ICE in the
removal process, with which Respondent contends Mohammed has not fully complied. (Id. at
pp. 3–4.)
Prior to issuing a travel document to one of its nationals, Ghana requires the national to
undergo a telephonic interview. (Id. at p. 3.) On July 31, 2017, the Embassy of Ghana notified
ICE Removal and International Operations (“RIO”) that Mohammed would be interviewed in
two weeks. (Id. at p. 4.) ICE Detention and Deportation Officer David Scarberry avers that
Ghana will likely issue a travel document to Mohammed shortly after the interview, and his
removal will be conducted shortly thereafter. (Id.)
Mohammed filed this Section 2241 action on April 28, 2017, in the Northern District of
Georgia. (Doc. 1.) Therein, he argues that he should be released pursuant to the ruling in
Zadvydas v. Davis, 533 U.S. 678 (2001), and that his continued detention violates his

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constitutional rights. After the case was transferred to this Court, on July 18, 2017, the Court
ordered the United States Marshal to serve the Respondent with a copy of the Petition and to
respond to the Petition within twenty days of service. (Doc. 8.) The Marshal served Respondent
on July 26, 2017, (doc. 10), and Respondent filed his Response, through counsel, on August 9,
2017, (doc. 13).
DISCUSSION
I.

Dismissal of Mohammed’s Section 2241 Petition
Under the Immigration and Nationality Act, “when an alien is ordered removed, the

Attorney General shall remove the alien from the United States within a period of 90 days.”
8 U.S.C. §1231(a)(1)(A).
8 U.S.C. §1231(a)(2).

During that period, the Attorney General must detain the alien.

However, any continued detention under that statute must not be

indefinite. In Zadvydas, the United States Supreme Court held that indefinite detention of aliens
raises serious constitutional concerns. 533 U.S. at 701. Thus, once an order of removal becomes
final, ICE should make every effort to remove the alien within a reasonable time. Id. The
Supreme Court found that six months is a presumptively reasonable period to detain a removable
alien awaiting deportation. Id.
However, this does not entail that every alien detained longer than six months must be
released.

Id.

Rather, to state a claim for habeas relief under Zadvydas, an alien must

(1) demonstrate that he has been detained for more than six months after a final order of
removal; and (2) “provide evidence of a good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future.” Akinwale v. Ashcroft, 287 F.3d
1050, 1052 (11th Cir. 2002). If a petitioner makes these showings, the burden shifts to the
Government to respond with evidence to rebut that showing. Zadvydas, 533 U.S. at 701.

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Mohammed has satisfied the first prong of Akinwale (i.e., detention beyond the sixmonth removal period). His order of removal became administratively final on November 13,
2016. Thus, the six-month mark passed on May 13, 2017. Nevertheless, he has failed to satisfy
the second prong of Akinwale. He has not presented any evidence of a good reason to believe
that there is no significant likelihood of removal in the reasonably foreseeable future. Akinwale,
287 F.3d at 1052.

Mohammed has not argued, much less presented evidence, that any

department of the United States has hindered his removal. Rather, in his Petition, he states that
“Ghana is is [sic] not in the shape that can accept people deported from other countries and the
embassy didn’t issue his travel documents.” (Doc. 1, p. 4.)
Mohammed’s conclusory and generalized allegations regarding Ghana’s intentions and
practices are insufficient to state a claim that there is no significant likelihood of his removal in
the reasonably foreseeable future. Fahim v. Ashcroft, 227 F. Supp. 2d 1359, 1365 (N.D. Ga.
2002) (Egyptian petitioner’s “bare allegations are insufficient to demonstrate a significant
unlikelihood of his removal in the reasonably foreseeable future.”).

Mohammed’s wholly

conclusory allegations lack any support in the record and do not require consideration by this
Court, let alone entitle him to any relief. See Caderno v. United States, 256 F.3d 1213, 1217
(11th Cir. 2001) (vague, conclusory allegations in a Section 2255 motion insufficient to state
basis for relief); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (quoting Stano v.
Dugger, 901 F.2d 898, 899 (11th Cir. 1990) (petitioner not entitled to habeas relief “when his
claims are merely ‘conclusory allegations unsupported by specifics’ or ‘contentions that in the
face of the record are wholly incredible.’”)). Moreover, Respondent has presented evidence that
over 210 nationals have been removed to Ghana in 2017, and Ghana issued forty (40) travel
documents on May 19, 2017, and forty-two (42) more on May 26, 2017. (Doc. 13-1, p. 4.)

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Equally unavailing is Mohammed’s implied argument that the Court can somehow
presume that he will not be removed in the reasonably foreseeable future because he was not
removed within 180 days of the removal order. Under this line of reasoning, the Court must
grant relief any time a petitioner is held for longer than six months after a removal order. This
would render the second prong of Akinwale meaningless and contradict the holding of Zadvydas.
Furthermore, Mohammed does not explain how the past lack of progress in the issuance of his
travel documents means that Ghana will not produce the documents in the foreseeable future.
See Fahim, 227 F. Supp. 2d at 1366 (“The lack of visible progress since the INS requested travel
documents from the Egyptian government does not in and of itself meet [petitioner’s] burden of
showing that there is no significant likelihood of removal.

‘[I]t simply shows that the

bureaucratic gears of the INS are slowly grinding away.’ [Khan v. Fasano, 194 F. Supp. 2d
1134, 1137 (S.D. Cal. 2001).] In other words, the mere fact that the 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.”). While Mohammed has shown bureaucratic delays in his removal
proceedings, he has not demonstrated a significant unlikelihood of his removal in the reasonably
foreseeable future.
Furthermore, even if the Court were to accept Mohammed’s speculation regarding
Ghana’s inaction on his proceedings, Respondent has rebutted that showing. Respondent has
presented evidence that the Ghana Embassy has responded in some measure to ICE’s request for
travel documents. The Ghana Embassy advised ICE that it will interview Mohammed at the end
of August of 2017. (Doc. 13-1, p. 4.) Additionally, Respondent has produced an affidavit from
Officer Scarberry, an ICE Deportation Officer, who declares ICE will schedule Mohammed’s
removal as soon as Ghana issues his travel documents. (Id.)

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Mohammed has failed to present any facts indicating that ICE is incapable of executing
his removal order and that his detention will be of an indefinite nature. However, circumstances
could eventually change in Mohammed’s removal situation to the point that he could present a
plausible claim for relief. Accordingly, the Court should DISMISS his Petition WITHOUT
PREJUDICE. Akinwale, 287 F.3d at 1052 (“Because circumstances may ultimately change in
[petitioner’s] situation, we affirm the dismissal without prejudicing [petitioner’s] ability to file a
new § 2241 petition in the future that may seek to state a claim upon which habeas relief can be
granted.”).
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Mohammed leave to appeal in forma pauperis. Though

Mohammed has, of course, not yet filed a notice of appeal, it would be appropriate to address
these issues in the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify
that appeal of party proceeding in forma pauperis is not taken in good faith “before or after the
notice of appeal is filed”). An appeal cannot be taken in forma pauperis if the trial court certifies
that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3).
Good faith in this context must be judged by an objective standard. Busch v. Cty. of Volusia,
189 F.R.D. 687, 691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to
advance a frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445
(1962). A claim or argument is frivolous when it appears the factual allegations are clearly
baseless or the legal theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327
(1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma
pauperis action is frivolous, and thus, not brought in good faith, if it is “without arguable merit

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either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v.
United States, Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Mohammed’s Petition and Respondent’s Response, there
are no non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith.
Thus, the Court should DENY in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DISMISS WITHOUT
PREJUDICE Mohammed’s Petition, (doc. 1), and DIRECT the Clerk of Court to CLOSE this
case. I further RECOMMEND that the Court DENY Mohammed leave to proceed in forma
pauperis on appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A

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party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Mohammed and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 28th day of August,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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