Mjok v. Lynch et al

Filing 4

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 10/9/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
AREJ DENG DENG MJOK,
A 094 549 699,
Petitioner,
vs.

Case No. 3:15-cv-01091-DRH

LORETTA LYNCH,
JEFF CHARLES JOHNSON,
RICARDO A. WONG, and
WARDEN – PULASKI COUNTY
DETENTION CENTER,
Respondents,
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Arej Deng Deng Mjok is currently imprisoned at the Pulaski
County Detention Center in Ullin, Illinois (Doc. 1). Proceeding pro se, he filed the
instant petition for a writ of habeas corpus under 28 U.S.C. § 2241 to challenge
his continued detention.
Petitioner is a native of the former Sudan and a citizen of South Sudan. He
entered the United States as a refugee on or about August 22, 2005, and has lived
in this country since that time. He has no family, and his only ties are to the
United States.
In May 2013, petitioner was convicted in Kentucky of assault and wanton
endangerment (Doc. 1, p. 12). On September 3, 2013, petitioner was taken into
custody by Immigration & Customs Enforcement (ICE).

Page 1 of 4

He has remained in

custody ever since. On April 23, 2014, he was ordered removed from the United
States to South Sudan. Petitioner’s custody status was reviewed for the first time
on August 21, 2014, and he was ordered to remain in detention. However, ICE
has been unable to effectuate petitioner’s removal.
Petitioner has cooperated with ICE’s efforts to remove him, which have
been stymied by the lack of a travel document.

On September 28, 2015,

petitioner was advised by a South Sudan embassy official that the government of
South Sudan is not issuing any travel documents, and will not issue them in the
foreseeable future (Doc. 1, p. 4).
He asserts that under Zadvydas v. Davis, 533 U.S. 678 (2001), six months
is the “presumptively reasonable period” during which ICE may detain an alien in
order to effectuate his removal. The Zadvydas ruling also applies to inadmissible
aliens, pursuant to the Supreme Court’s decision in Clark v. Martinez, 543 U.S.
371 (2005). Petitioner’s presumptive six-month period is long expired. Due to
the unavailability of the necessary travel documents, his removal to South Sudan
or any other country is not likely to occur in the reasonably foreseeable future.
Therefore, he claims, he should be entitled to release from custody under the
terms of the applicable statute and case law (Doc. 1, p. 5). He also asserts that
substantive and procedural due process violations have occurred, which should
lead to his release.
Without commenting on the merits of petitioner’s claims, the Court
concludes that the petition survives preliminary review under Rule 4 and Rule

Page 2 of 4

1(b) 1 of the Rules Governing Section 2254 Cases in United States District Courts,
and a response shall be ordered.
However, petitioner has named several respondents who are not proper in a
§ 2241 action. In Kholyavskiy v. Achim, 443 F.3d 946, 952-53 (7th Cir. 2006),
the Seventh Circuit held that an immigration detainee raising substantive and
procedural due process challenges to his “confinement while awaiting removal”
could only name the person who has immediate custody of him during his
detention, and not high-level Immigration and Customs Enforcement officials or
the Attorney General. Accordingly, all defendants other than the Warden of the
Pulaski County Detention Center will be dismissed from this case.
Disposition
IT IS HEREBY ORDERED that Attorney General Loretta Lynch, DHS
Secretary Jeff Charles Johnson, and ICE Field Office Director Ricardo A. Wong
are DISMISSED from this action.
IT IS FURTHER ORDERED that the Warden of the Pulaski County
Detention Center shall answer the petition within thirty days of the date this order
is entered. 2

This order to respond does not preclude the respondent from

making whatever waiver, exhaustion, or timeliness arguments it may wish to
present to the Court. Service upon the Warden, Pulaski County Detention Center,
20 Justice Drive, Ullin, Illinois, 62992 shall constitute sufficient service.
Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas
corpus cases, such as this action brought under § 2241.

1

The response date ordered herein is controlling. Any date that CM/ECF should generate
in the course of this litigation is a guideline only.

2

Page 3 of 4

Pursuant to Federal Rule of Civil Procedure 4(i), the CLERK is DIRECTED
to send a copy of the summons, petition, and this Order to the United States
Attorney for the Southern District of Illinois, 750 Missouri Avenue, East St. Louis,
and to send a copy of the summons, petition, and Order via registered or certified
mail to the United States Attorney General in Washington, D.C., and to the United
States Department of Homeland Security.
IT IS FURTHER ORDERED that, pursuant to Local Rule 72.1(a)(2), this
cause is REFERRED to Magistrate Judge Clifford J. Proud for further pre-trial
proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to
Magistrate Judge Clifford J. Proud for disposition, as contemplated by Local Rule
72.2(b)(2) and 28 U.S.C. § 636(c), should all parties consent to such a referral.
Petitioner is ADVISED of his continuing obligations to keep the Clerk (and
respondent) informed of any change in his whereabouts during this action. This
notification shall be done in writing and not later than seven days after a transfer
or other change in address occurs. Failure to provide such notice may result in
dismissal of this action. See Fed. R. Civ. P. 41(b).
IT IS SO ORDERED.
Signed this 9th day of October, 2015.

Digitally signed
by David R.
Herndon
Date: 2015.10.09
16:25:59 -05'00'
United States District Judge

Page 4 of 4