Mbengue v. Gartland et al

Filing 6

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Mbengue's 1 Petition, DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and CLOSE this case, and DENY Mbengue in forma pauperi s status 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 10/3/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 9/19/2017. (csr)

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

KHADIM MBENGUE,
Petitioner,

CIVIL ACTION NO.: 5:17-cv-99

v.
PATRICK GARTLAND, 1

Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Khadim Mbengue (“Mbengue”), 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,
as amended. (Docs. 1, 4.) Mbengue also filed a Motion to Proceed in Forma Pauperis.
(Doc. 3.) As Mbengue has paid the filing fee, the Court DISMISSES as moot Mbengue’s
Motion. For the reasons which follow, I RECOMMEND that the Court DISMISS without
prejudice Mbengue’s Petition, (doc. 1), DIRECT the Clerk of Court to enter the appropriate
judgment of dismissal and CLOSE this case, and DENY Mbengue in forma pauperis status on
appeal.
BACKGROUND
Mbengue, a native and citizen of Senegal, applied for admission to the United States on
October 27, 2016, at the Port Elizabeth, Texas, port of entry by claiming a fear of returning to his
1

Patrick Gartland is the Warden of the Folkston ICE Processing Center and is the only proper
Respondent to this Petition. See Rumsfeld v. Padilla, 542 U.S. 426, 436 (2004). Therefore, the Court
DIRECTS the Clerk of the Court to amend the caption of this case to name Patrick Gartland as the only
proper Respondent.

country. (Doc. 1, p. 2.) After referral for a credible fear interview, an Asylum Pre-Screening
Officer with the United States Citizenship and Immigration Services referred Mbengue’s case to
an Immigration Judge. (Id.) On December 8, 2017, the Immigration Judge ordered Mbengue
removed to Senegal. (Id. at p. 14.) Mbengue did not file an appeal, and the removal order
became administratively final. (Id.)
However, Mbengue had not yet been removed to Senegal at the time he filed his Petition.
ICE served Mbengue with a Warning for Failure to Depart, reminding him of his obligation to
make timely applications for travel and identification documents. (Id. at p. 13.) Mbengue states
ICE officials have been working with Senegalese officials to secure his travel documents for
removal. (Doc. 4, p. 7.)
Mbengue filed this Section 2241 action on August 8, 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 did not order service of Mbengue’s Petition
upon the Respondent, as the Court can make a fully formed decision based on Mbengue’s
filings. 2
DISCUSSION
I.

Dismissal of Mbengue’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

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The Clerk of Court mailed a copy of the receipt for his filing fee to Mbengue at his last known address.
That mailing was returned to the Court with the notations “Return to Sender” and “No longer here” on
September 15, 2017, (doc. 5), indicating that Mbengue has been released from the ICE facility in
Folkston, Georgia.
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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 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.
Mbengue has satisfied the first prong of Akinwale (i.e., detention beyond the six-month
removal period). His order of removal became administratively final on December 8, 2016.
Thus, he had experienced more than six months of post-removal order detention at the time he
filed his Section 2241 Petition. However, despite this showing, Mbengue 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. Mbengue has not argued, much less presented evidence, that any department of the
United States has hindered his removal. Rather, in his Petition, he states in a conclusory fashion
that there is no significant likelihood that his removal will occur in the reasonably foreseeable
future. (Doc. 1, p. 5.)

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Mbengue’s conclusory and generalized allegations regarding Senegal’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.”).

Mbengue’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 Mbengue’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, Mbengue
does not explain how the past lack of progress in the issuance of his travel documents means that
Senegal 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

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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
Mbengue 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 Mbengue’s speculation regarding Senegal’s
inaction on his proceedings, Mbengue also has presented argument that officials with ICE have
been working with the Senegal government to secure his travel documents. (Doc. 4, p. 7.)
Mbengue 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 Mbengue’s removal situation to the point that he could present a
plausible claim for relief.

Accordingly, the Court should DISMISS without prejudice

Mbengue’s 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 Mbengue leave to appeal in forma pauperis.

Though

Mbengue 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

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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 Mbengue’s Petition, 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
Mbengue in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, the Court DISMISSES as moot Mbengue’s Motion to Proceed
in Forma Pauperis in this Court. Furthermore, I RECOMMEND that the Court DISMISS
without prejudice Mbengue’s Petition, (doc. 1), and DIRECT the Clerk of Court to enter the
appropriate judgment of dismissal and CLOSE this case. I further RECOMMEND that the
Court DENY Mbengue 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

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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. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Mbengue.
SO ORDERED and REPORTED and RECOMMENDED, this 19th day of September,
2017.

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

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