Shalash v. Lynch et al

Filing 3

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 3/18/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Attaallah Akram Shalash,
A089568663,
Petitioner,
vs.

Case No. 3:16-cv-00283-DRH

LORETTA LYNCH,
JEFF CHARLES JOHNSON,
RICARDO A. WONG, and
WARDEN OF IMMIGRATION
DETENTION FACILITY,
Respondents.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Attaallah Akram Shalash 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 and citizen of Palestine. He entered the United States
illegally on September 4, 2005, and became a legal permanent resident on
October 15, 2012. (Id. at 3.) Petitioner has been in the custody of United States
Immigration and Customs Enforcement (ICE) since May 8, 2015. (Id.) An
immigration judge ordered petitioner removed on August 26, 2015.
Petitioner’s custody status was reviewed for the first time on November 25,
2015. (Id. at 4.) On December 2, 2015, he was served with a written decision

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ordering his continued detention. (Id.) ICE has been unable to effectuate his
removal, although petitioner has cooperated with ICE’s efforts to remove him.
Petitioner 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 has
ended. Petitioner claims his removal to Palestine 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. (Doc. 1 at 6.) He also asserts that substantive
and procedural due process violations have occurred. (Id. at 5-6.)
Without commenting on the merits of petitioner’s claims, the Court
concludes that the petition survives preliminary review under Rule 4 and Rule
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

1

Rule 1(b) of the Rules Governing Section 2254 Cases in the United States District Courts gives
this Court the authority to apply the rules to other habeas corpus cases, such as this action
brought under § 2241.

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detention, and not high-level ICE 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,

Department of Homeland Security 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 (on or before April 18, 2016).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.
Pursuant to Federal Rule of Civil Procedure 4(i), the CLERK is DIRECTED
to send a copy of the letter constituting service, 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 letter constituting service, 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
2

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

Digitally signed by
Judge David R.
Herndon
Date: 2016.03.18
15:17:45 -05'00'

DATED: March 18, 2016

United States District Judge

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