Mehari v. Simon

Filing 13

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Mehari's 1 Petition, and DIRECT the Clerk to CLOSE this case. It is further RECOMMENDED that the Court DENY Mehari leave to proceed in forma pauperis o n 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 9/13/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/30/2017. (ca)

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

DAWIT ABRAHAM MEHARI,
Petitioner,

CIVIL ACTION NO.: 5:17-cv-53

v.
PATRICK GARTLAND,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Dawit Abraham Mehari (“Mehari”), 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. 12.) For the reasons which follow, I RECOMMEND that the
Court DISMISS WITHOUT PREJUDICE Mehari’s Petition, (doc. 1), DIRECT the Clerk of
Court to CLOSE this case, and DENY Mehari in forma pauperis status on appeal.
BACKGROUND
On May 11, 2016, Mehari, a native and citizen of Eritrea, applied for admission to the
United States at the Hidalgo, Texas, Port of Entry, by claiming a fear of returning to his country.
(Doc. 1, p. 6.) After referral for a credible fear interview, an Asylum Pre-Screening Officer with
the United States Citizenship and Immigration Services referred Mehari’s case to an Immigration
Judge. (Doc. 12-1, p. 1.) On October 21, 2016, the Immigration Judge ordered Mehari removed

to Eritrea. (Doc. 1, p. 7.) Mehari did not file an appeal, and the removal order became
administratively final. (Doc. 12-1, p. 2.)
However, Mehari has not yet been removed to Eritrea. On numerous occasions, ICE
served Mehari with a Warning for Failure to Depart, reminding him of his obligation to make
timely applications for travel and identification documents. (Id. at pp. 2–3.) Nevertheless,
Mehari failed to make any effort to obtain travel documents. (Id.) On January 11, 2017, ICE
mailed a request to the Embassy of Eritrea for issuance of travel documents, but Eritrea has yet
to issue those documents.

(Id. at pp. 2–3.)

ICE conducted reviews of Mehari’s custody

conditions on January 12, 2017, and April 25, 2017. (Id. at p. 4.) After those reviews, ICE
found that Mehari’s removal was likely in the reasonable foreseeable future, and thus, decided to
continue Mehari’s detention.

(Id.)

On July 12, 2017, ICE Removal and International

Operations, a division of Enforcement and Removal Operations at ICE Headquarters, advised
that Mehari was set for a July 26, 2017, interview with the Eritrean Embassy regarding his travel
documents. (Id. at p. 3.) ICE Detention and Deportation Officer Haylean Berry avers that ICE
will schedule Mehari’s removal as soon as Eritrea issues his travel documents. (Id. at p. 3.)
Mehari filed this Section 2241 action on May 8, 2017 in the Northern District of Georgia.
(Doc. 1.)

Therein, he requests that he be released from ICE custody while his removal

proceedings are pending. After the case was transferred to this Court, on June 29, 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 7, 2017, (doc. 10), and Respondent filed his Response, through counsel, on
July 20, 2017 (doc. 13).

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DISCUSSION
I.

Dismissal of Mehari’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).

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

8 U.S.C. §1231(a)(2). Additionally, the Attorney General may detain certain categories of aliens
beyond the 90 day removal period. 8 U.S.C. § 1231(a)(6). However, any continued detention
under that statute must not be indefinite. See Zadvydas v. Davis, 533 U.S. 678, 701 (2001)
(construing 8 U.S.C. § 1231(a)(6) to contain a “reasonable time” limitation in which the
Attorney General may detain aliens beyond the 90 day period). The United States Supreme
Court has 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.
Mehari has satisfied the first prong of Akinwale (i.e., detention beyond the six-month
removal period). His order of removal became administratively final on October 21, 2016.
Thus, the six-month mark passed on April 21, 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

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there is no significant likelihood of removal in the reasonably foreseeable future. Akinwale, 287
F.3d at 1052. Mehari has not argued, much less presented evidence, that any department of the
United States has hindered his removal. Rather, in his Petition, he generally states that he would
not be a threat to the community if he was released in the United States. (Doc. 1, p. 4.)
Any conclusory and generalized allegations regarding Eritrea’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.”). Mehari’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.’”)).
Equally unavailing is Mehari’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. (Doc. 1-2, pp. 2, 6–7.) 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, Mehari does not explain how the past lack of progress in the issuance
of his travel documents means that Eritrea will not produce the documents in the foreseeable

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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 Mehari 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 Mehari’s speculation regarding Eritrea’s
inaction on his proceedings, Respondent has rebutted that showing.

The Government has

presented evidence that the Eritrean Embassy has responded in some measure to ICE’s request
for travel documents. The Eritrean Embassy advised ICE that it planned to interview Mehari on
July 26, 2017. (Doc. 12-1, p. 3.) Additionally, Respondent has produced an affidavit from
Officer Haylean Berry, an ICE Deportation Officer, who declares ICE will schedule Mehari’s
removal as soon as Eritrea issues his travel documents. (Id.)
Mehari 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 Mehari’s removal situation where he could present a plausible claim
for relief.

Accordingly, the Court should DISMISS WITHOUT PREJUDICE Mehari’s

Petition filed pursuant to 28 U.S.C. § 2241.

Akinwale, 287 F.3d at 1052 (“Because

circumstances may ultimately change in [petitioner’s] situation, we affirm the dismissal without

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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 Mehari leave to appeal in forma pauperis. Though Mehari

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 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 Mehari’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.

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CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DISMISS WITHOUT
PREJUDICE Mehari’s Petition, (doc. 1), and DIRECT the Clerk of Court to CLOSE this case.
I further RECOMMEND that the Court DENY Mehari 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
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.

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The Court DIRECTS the Clerk of Court to serve a copy of this Report and
Recommendation upon Mehari and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 30th day of August,
2017.

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

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