Neway v. Moore

Filing 8

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Neway's 1 Petition, and DIRECT the Clerk to CLOSE this case. It is further RECOMMENDED that the Court DENY Neway 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. (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

ZELALEM MANGISTU NEWAY,
Petitioner,

CIVIL ACTION NO.: 5:17-cv-58

v.
PATRICK GARTLAND, 1
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Zelalem Mangistu Neway (“Neway”), 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. 7.) For the reasons which follow, I RECOMMEND that the
Court DISMISS WITHOUT PREJUDICE Neway’s Petition, (doc. 1), DIRECT the Clerk of
Court to CLOSE this case, and DENY Neway in forma pauperis status on appeal.
BACKGROUND
Neway, a native and citizen of Ethiopia, applied for admission to the United States on
May 12, 2016, at the Hidalgo, Texas, port of entry by claiming a fear of returning to his country.
(Doc. 7-1, p. 2.) After referral for a credible fear interview, an Asylum Pre-Screening Officer
with the United States Citizenship and Immigration Services referred Neway’s case to an
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The Clerk of Court is DIRECTED to amend Respondent’s name upon the record and docket of this
case, as Patrick Gartland is the Warden at the Folkston ICE Processing Center. The only proper
respondent in a Section 2241 case such as this is the petitioner’s immediate custodian– the warden of the
facility where the petitioner is confined. See Rumsfeld v. Padilla, 542 U.S. 426, 434–35 (2004).

Immigration Judge. (Id.) On September 28, 2016, the Immigration Judge ordered Neway
removed to Ethiopia. (Id.) Neway did not file an appeal, and the removal order became
administratively final. (Id.)
However, Neway has not yet been removed to Ethiopia. On three ocassions, ICE served
Neway with a Warning for Failure to Depart (“Form I-229(a)”), reminding him of his obligation
to make timely applications for travel and identification documents. (Id. at pp. 2–3.) However,
Neway has not made any effort to obtain travel documents. (Id.) On December 21, 20167, ICE
mailed a request to the Embassy of Ethiopia for issuance of travel documents and resubmitted
that request on March 21, 2017.

(Id. at p. 2.)

The Embassy of Ethopia telephonically

interviewed Neway on April 6, 2017, and on June 7, 2017, the Embassy indicated to ICE that
Ethiopia is willing to issue travel documents for Neway but requested additional documentation
to expedite the process. (Id. at p. 3.)
ICE conducted reviews of Neway’s custody conditions on December 28, 2016, and
March 31, 2017. (Id. at pp. 3–4.) After that review, ICE found that Neway’s removal was likely
in the reasonably foreseeable future, and thus, decided to continue Neway’s detention. (Id.) ICE
has taken other actions to facilitate Neway’s removal.

Pertinently, ICE Removal and

International Operations (“RIO”), a division of Enforcement and Removal Operations at ICE
Headquarters which assists the local field offices in obtaining travel documents, planned to visit
the Embassy of Ethiopia during the week of June 11, 2017, and discuss the request for Neway’s
travel documents.
Neway filed this Section 2241 action on May 5, 2017. (Doc. 1.) Therein, he argues that
he should be released from custody given the amount of time that has passed since the
Immigration Judge ordered his removal. The Court ordered the United States Marshal to serve

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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 May 31, 2017, (doc. 3), and Respondent
filed his Response, through counsel, on June 15, 2017, (doc. 7).
DISCUSSION
I.

Dismissal of Neway’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 v. Davis, 533 U.S. 678 (2001), 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.
Neway has satisfied the first prong of Akinwale (i.e., detention beyond the six-month
removal period). His order of removal became administratively final on September 28, 2016.

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Thus, the six-month mark passed on March 18, 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. Neway has not argued, much less presented evidence, that any department of the
United States has hindered his removal. Rather, in his Petition, he simply argues that he has
been detained for more than six months and that his removal appears indefinite.
Neway’s conclusory and generalized allegations regarding Ethiopia’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.”). Neway’s wholly conclusory
allegation 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 Neway’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.

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Furthermore, Neway does not explain how the past lack of progress in the issuance of his travel
documents means that Ethiopia 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 Neway 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 Neway’s speculation regarding Ethiopia’s
inaction on his proceedings, Respondent has rebutted that showing.

The Government has

presented evidence that the Ethiopia Embassy has responded in some measure to ICE’s request
for travel documents. (Doc. 7-1, p. 3.) The Ethiopia Embassy advised the HQ-RIO at the
beginning of June 2017 that it was willing to issue travel documents, and the Embassy requested
additional information to expedite that request. (Id.) Additionally, HQ-RIO planned to visit the
Embassy and discuss Neway’s travel documents. (Id.) Respondent has produced an affidavit
from Officer Haylean Bayle of the Office of Enforcement and Removal Operations, who
declares ICE will schedule Neway’s removal as soon as Ethiopia issues his travel documents.
(Id.)
Neway 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

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could eventually change in Neway’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 Neway leave to appeal in forma pauperis. Though Neway

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).

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Based on the above analysis of Neway’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 Neway’s Petition, (doc. 1), and DIRECT the Clerk of Court to CLOSE this case.
I further RECOMMEND that the Court DENY Neway 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

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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 Neway 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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