Alex v. Gartland

Filing 11

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Alex's 1 Petition, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY ALEX in forma pauperis statu s on appeal. Any party seeking to object to this Report and Recommendation is ordered 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 11/3/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/20/2017. (csr)

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

ELONGA BOLIMO ALEX,
Petitioner,

CIVIL ACTION NO.: 5:17-cv-89

v.
PATRICK GARTLAND,

Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Elonga Bolimo Alex (“Alex”), 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. 6.) For the reasons which follow, I RECOMMEND that the
Court DISMISS without prejudice Alex’s Petition, (doc. 1), DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate judgment of dismissal, and DENY Alex in forma
pauperis status on appeal. 1
BACKGROUND
Alex, a native and citizen of The Democratic Republic of the Congo (“Congo”), applied
for admission to the United States on October 9, 2016, at the Brownsville, Texas, port of entry
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This is the second Section 2241 Petition Alex has brought challenging his continued detention at the
Folkston ICE Processing Center. On August 28, 2017, I recommended that the Court dismiss without
prejudice Alex’s prior petition for many of the same reasons that his current Petition should be dismissed.
R. & R., Alex v. Gartland, 5:17-cv-68 (S.D. Ga. Aug. 28, 2017), ECF No. 8. Alex has not objected to
that recommendation. Denial is even more appropriate in this case, as Alex has now been scheduled for a
removal flight back to Congo. (Doc. 9-1, p. 4.)

by claiming a fear of returning to his country. (Doc. 9-1, p. 1.) After referral for a credible fear
interview, an Asylum Pre-Screening Officer with the United States Citizenship and Immigration
Services referred Alex’s case to an Immigration Judge. (Id. at p. 2.) On January 19, 2017, the
Immigration Judge ordered Alex removed to Congo. (Id.) Alex filed an appeal, which the Board
of Immigration Appeals denied, and the removal order became administratively final on April 7,
2017. (Id.)
However, at the time Respondent filed his Response to the Petition, Alex had not yet
been removed to Congo. ICE served Alex with a Warning for Failure to Depart (“Form I229(a)”) reminding him of his obligation to make timely applications for travel and identification
documents. (Id. at pp. 2–3.) However, Alex has not made any effort to obtain travel documents
and has refused to sign ICE’s request for travel documents. (Id.) On May 1, 2017, ICE mailed a
request to the Embassy of Congo for issuance of travel documents. (Id. at p. 3.) On June 16,
2017, ICE Removal and International Operations (“RIO”), a division of Enforcement and
Removal Operations (“ERO”) at ICE Headquarters which assists the local field offices in
obtaining travel documents, advised that the Embassy of Congo had issued travel documents that
were being mailed to the Miami ERO field office so that flight arrangements could be made to
transport Alex to Congo. (Id.) On July 28, 2017, ICE informed the Embassy of the Democratic
Republic of the Congo that Alex’s travel document had his name misspelled, and a new
document was requested. (Id. at p. 4.) On August 28, 2017, a new travel document was issued
by the Embassy of the Democratic Republic of the Congo. (Id.) ICE has scheduled Alex for an
unescorted removal flight, and the itinerary is currently pending. ICE will remove Alex as soon
as the itinerary is approved. (Id.)

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Alex filed this Section 2241 action on July 17, 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
the Respondent with a copy of the Petition and to respond to the Petition within twenty (20) days
of service. (Doc. 4.) The Marshal served Respondent on September 5, 2017, (doc. 5), and
Respondent filed his Response, through counsel, on September 15, 2017, (doc. 9).
DISCUSSION
I.

Dismissal of Alex’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

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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.
Alex has not satisfied the first prong of Akinwale (i.e., detention beyond the six-month
removal period). His order of removal became administratively final on April 7, 2017. Thus, he
has not demonstrated a post-removal order of detention of more than six months’ time. Even if
he had made such a showing, 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. Alex 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 ninety days and
that his removal appears indefinite.
Alex’s conclusory and generalized allegations regarding Congo’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.”). Alex’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 28 U.S.C. § 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.’”)).

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Equally unavailing is Alex’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 since
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, Alex does not
explain how the past lack of progress in the issuance of his travel documents means that Congo
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 Alex has
shown minimal 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 Alex’s speculation regarding Congo’s
inaction on his proceedings, Respondent has rebutted that showing.

The Government has

presented evidence that the Congolese Embassy has responded to ICE’s request for travel
documents. (Doc. 9-1, pp. 3–4.) Respondent has produced an affidavit from Alberto Cornavaca,
who declares that ICE has scheduled Alex for an unescorted removal flight and that ICE will
remove Alex as soon as his itinerary is approved. (Id.)
Alex 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 Alex’s removal situation to the point that he could present a plausible
claim for relief. Accordingly, the Court should DISMISS without prejudice his Petition.
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 Alex leave to appeal in forma pauperis. Though Alex 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 Alex’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
Alex’s Petition, (doc. 1), and DIRECT the Clerk of Court to CLOSE this case and enter the
appropriate judgement of dismissal. I further RECOMMEND that the Court DENY Alex 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 Alex and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 20th day of October,
2017.

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

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