Wachaga v. Lynch et al

Filing 5

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 3/7/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KARIUKI ALFRED WACHAGA,
A#205-496-918,
Petitioner,
v.

Case No. 17-cv-226-DRH

LORETTA LYNCH,
JEFF CHARLES JOHNSON,
RICARDO A. WONG,
SOUTHERN DISTRICT OF ILLINOIS
FIELD OFFICE,
and WARDEN OF IMMIGRATION
DETENTION FACILITY,
Respondents.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Kariuki Alfred Wachaga is currently being held at the Pulaski County
Detention Center in Ullin, Illinois. (Doc. 1 at 3). Proceeding pro se, Petitioner has
filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, challenging
his detention by Immigration & Customs Enforcement officials since March 31,
2016. (Doc. 1). Petitioner insists that his detention is improper because he has
been detained pending removal for longer than the six months that is
presumptively allowed under Zadvydas v. Davis, 533 U.S. 678 (2001), and there
is no likelihood of removal in the reasonably foreseeable future.
This matter is now before the Court for a preliminary review of the Petition.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts provides that, upon preliminary review of the petition 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.” Rule 1(b) of those Rules
gives this Court the authority to apply the rules to other habeas corpus cases,
such as this action.
Background
Petitioner is a native citizen of the Republic of Kenya who has lived in the
United States for almost eleven years. (Doc. 2 at 2). On August 6, 2014, he was
taken into custody by Immigration and Customs Enforcement (“ICE”) officials and
charged with overstaying his Visa, which expired in 2008. Id. He was released on
$3000 bond and surrendered his expired Republic of Kenya passport.

Id.

Petitioner was later arrested on March 8, 2016 on a warrant for possession of
marijuana, and ICE officials subsequently issued him an I-340 form ordering him
to appear on March 31, 2016 at the Department of Homeland Security office in
downtown St. Louis. (Doc. 1 at 2-3). Petitioner complied with the order, and
March 31, 2016 his bond was revoked, he was taken into custody, and he was
detained in Pulaski County Detention Center, where he remained at least until the
date he filed this Petition. (Doc. 1 at 3). Petitioner lost his asylum case June 14,
2015, on which date a decision was issued ordering Petitioner be removed from
the United States.

Id. Petitioner’s leave to appeal expired July 14, 2016, on

which date his order of removal was finalized.

Id. On October 5, 2016, ICE

conducted its first 90-days post-order custody review of the Petitioner’s case, in
which Petitioner’s Deportation Officer recommended he be released on an order

of supervision. Id. On October 7, 2016, the Chicago Field Office Director Ricardo
A. Wong issued a decision to continue Petitioner’s detention. (Doc. 1 at 4). On
January 27, 2017, the Director of the Department of Homeland Security
Headquarter Post-Order Detention Unit Floyd S. Farmer also issued a decision to
continue Petitioner’s detention. Id. To date, Petitioner has not yet been removed
from the United States, and he remains in detention pending removal. (Doc. 1 at
5). Petitioner now challenges his ongoing detention in this habeas corpus action
filed March 3, 2017 under 28 U.S.C. § 2241. (Doc. 1).
Discussion
Petitioner’s habeas petition alleges that his ongoing detention violates
certain constitutional provisions and the Supreme Court’s interpretation of 8
U.S.C. § 1231(a)(6) in Zadvydas v. Davis, 533 U.S. 678 (2001).

The Court's

preliminary review of Petitioner’s Petition suggests that it cannot be dismissed at
the screening stage, so the Petition will proceed past preliminary review.
However, Petitioner has named a number of defendants that 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 ICE officials or the Attorney General. Accordingly,
all defendants other than the Warden of the Immigration Detention Facility will be
dismissed from this case.

Pending Motions
Petitioner has filed a Motion to Appoint Counsel (Doc. 2) which is hereby
REFERRED to Magistrate Judge Clifford J. Proud for consideration.
Petitioner has filed a “Petition to Stop I.C.E.-D.H.S. Transferring the
Detainee from Southern District Courts Jurisdiction” (Doc. 3), which is hereby
REFERRED to Magistrate Judge Clifford J. Proud for consideration.
Disposition
IT IS HEREBY ORDERED that Petitioner’s Petition for a writ of habeas
corpus shall proceed past preliminary screening.
IT IS FURTHER ORDERED that LORETTA LYNCH, JEFF CHARLES
JOHNSON, RICARDO A. WONG, and SOUTHERN DISTRICT OF ILLINOIS
FIELD OFFICE are hereby DISMISSED from this action.
IT IS FURTHER ORDERED that the Warden of the Immigration Detention
Facility shall answer Petitioner’s Petition within thirty days of the date this Order
is entered (on or before April 6, 2017). 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 of the
Immigration Detention Facility/Pulaski County Detention Center, 20 Justice Drive,
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

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. See SDIL-EFR 3.

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., 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 on this 7th day of March, 2017.

Digitally signed by
Judge David R.
Herndon
Date: 2017.03.07
10:10:50 -06'00'
UNITED STATES DISTRICT JUDGE