Berisaj v. Lynch et al

Filing 4

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 1/25/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SELVIR BERISAJ,
075 073 804,
Petitioner,
vs.
LORETTA LYNCH,
JEFF CHARLES JOHNSON,
RICHARDO A. WONG,
and WARDEN,
Respondents.

Case No. 16-cv-2-DRH
MEMORANDUM AND ORDER

HERNDON, District Judge:
Selvir Berisaj is currently detained at the Tri-County Detention Center in
Ullin, Illinois. (Doc. 1). Proceeding pro se, Berisaj filed the instant petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) on January 4, 2016,
in order to challenge his detention by Immigration & Customs Enforcement
officials since April 1, 2014. (Id. at 5). An immigration judge allegedly entered a
final Order for his removal from the United States on July 2, 2015. Berisaj has
now been detained beyond the six-month period that the United States Supreme
Court held was presumptively reasonable to effectuate his removal in Zadvydas v.

Davis, 533 U.S. 678 (2001). Removal is unlikely in the “reasonably foreseeable
future.” Id. at 702. Berisaj asserts that his continued detention is improper, and
he seeks immediate release from custody.
This matter is now before the Court for a preliminary review of the petition
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pursuant to Rule 4 of the Rules Governing § 2254 Cases in United States District
Courts. Rule 4 provides that upon preliminary consideration by the district court
judge, “[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.” After carefully reviewing the
petition and exhibits, the Court concludes that the petition warrants further
review.
I.

Background

Berisaj is a native of Yugoslavia and a citizen of Bosnia-Herzegovina.
(Doc. 1 at 3-5). He first entered the United States as a refugee in 1999. His status
was adjusted to that of a lawful permanent resident of this country following the
conflict in the former Yugoslavia.
Berisaj was convicted of multiple theft- and drug-related crimes on
undisclosed dates. After serving sentences for those crimes, the Department of
Homeland Security (“DHS”) identified Berisaj as an individual who is subject to
removal from the United States. He was taken into custody by Immigration &
Customs Enforcement (“ICE”) officials on April 1, 2014. An immigration judge
ordered his removal to Bosnia-Herzegovina or Montenegro in an Order that
became final on July 2, 2015.
To date, ICE has been unable to remove Berisaj to the former Yugoslavia,
Kosovo, Montenegro, or any other country. His custody status was reviewed on
September 30, 2015. His continued detention was ordered on October 1, 2015.

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Berisaj has fully cooperated with the removal efforts. Despite this fact, he
contends that removal is not likely in the reasonably foreseeable future. Officials
in Bosnia-Herzegovina recently refused to issue Berisaj travel documents, after
taking the position that he is no longer a citizen. He received a notice transferring
authority over his custody status to ICE headquarters on December 29, 2015.
(Id.). The instant habeas petition followed.
II.

Discussion

Berisaj filed his § 2241 petition on January 4, 2016. (Doc. 1). In it, Berisaj
claims that his ongoing detention violates his substantive and procedural due
process rights and 8 U.S.C. § 1231(a)(6), among other federal statutes, as
interpreted by the United States Supreme Court in Zadvydas v. Davis, 533 U.S.
678 (2001). The Court’s preliminary review of his overall petition suggests that
dismissal would not be appropriate at screening.

The § 2241 petition will

therefore proceed past preliminary review.
With that said, Berisaj has named several respondents who are not proper.
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 awaiting removal” could
only name the person who has immediate custody of him during his detention,
and not high-level ICE officials or the Attorney General.

Id.

Accordingly, all

respondents other than the Warden of the Tri-County Detention Center will be
dismissed from this case.

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III.

Disposition

IT IS HEREBY ORDERED that Berisaj’s petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 shall receive further review.
IT IS FURTHER ORDERED that Loretta Lynch (Attorney General),
Jeff Charles Johnson (Department of Homeland Security Secretary), and Ricardo
Wong (Immigration & Customs Enforcement Chicago/Southern District of Illinois
Field Office Director) are hereby DISMISSED from this action.
IT IS FURTHER ORDERED that the Warden of the Tri-County Detention
Center shall answer the petition within thirty (30) days of the date this Order is
entered. 1 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, Tri-County Detention Center, 1026 Shawnee
College Road, Ullin, Illinois, 62992 shall constitute sufficient service.
Out of an abundance of caution and pursuant to Federal Rule of Civil
Procedure 4(i), the Clerk is DIRECTED to send a copy of the petition and this
Order to the United States Attorney for this District, and to send a copy of the
petition and Order via registered or certified mail to the United States Attorney
General in Washington, D.C., to the United States Department of Homeland
Security, and to the United States Immigration & Customs Enforcement.
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
1

The response date ordered herein is controlling. Any date that CM/ECF should generate
in the court of this litigation is a guideline only.
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proceedings.
IT IS FURTHER ORDERED that this entire matter is 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.
Petition 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).

Digitally signed by
Judge David R.
Herndon
Date: 2016.01.25
11:32:49 -06'00'

IT IS SO ORDERED.
DATED: 1/25/2016

District Judge
United States District Court

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