Omerovic v. Madigan et al

Filing 4

MEMORANUDM AND ORDER: ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. IT IS HEREBY ORDERED that Illinois Attorney General Lisa Madigan,DHS Secretary John F. Kelly, Ricardo A. Wong, and the Southern District ofIllinois Field Office (which is not a person) are DISMISSED from this action. IT IS FURTHER ORDERED that the Warden of the Immigration DetentionFacility/Pulaski County Detention Center shall answer the petition within thirty days of the date this Order is entered. The CLERK is DIRECTEDto send a copy of the letter constituting service, the 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. Signed by Judge David R. Herndon on 7/13/2017. (tkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ZUHDIJA OMEROVIC,
No. A077-685-306,
Petitioner,
vs.

Case No. 17-cv-605-DRH

LISA MADIGAN,
JOHN F. KELLY,
RICARDO A. WONG,
SOUTHERN DISTRICT of ILLINOIS
FIELD OFFICE,
and WARDEN,
Respondents.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Omerovic 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 claims that he has been detained by Immigration
& Customs Enforcement (ICE) for more than 6 months following his August 31,
2016, removal order, and that his removal from the United States is not
reasonably foreseeable due to the failure to verify his citizenship in Bosnia and
Herzegovina.
Petitioner’s country of origin is the former Yugoslavia, currently BosniaHerzegovina. (Doc. 1, p. 3). Upon entry of the order of removal, the judge told
petitioner that he would be deported to Bosnia-Herzegovina.
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Petitioner

surrendered all his paperwork to DHS/ICE.

After 6 months, the Bosnia-

Herzegovina government responded by denying the issuance of travel documents
for petitioner, stating they could not verify that Petitioner is a citizen of BosniaHerzegovina. (Doc. 1, p. 9). Because of this situation, petitioner asserts that his
removal to Bosnia-Herzegovina is not likely to be accomplished in the foreseeable
future. (Doc. 1, p. 3). He further points out that he has acted in good faith with
regards to the application for travel documents and has fully cooperated with ICE.
At the time he filed this action, petitioner had been detained for 12 months, of
which 8 months elapsed after the order of removal. (Doc. 1, p. 5).
Because

the

government

of

Bosnia-Herzegovina

has

declared

that

petitioner’s citizenship cannot be confirmed, petitioner claims that he is a
“stateless person.” (Doc. 1, p. 7). Petitioner has been detained in the custody of
ICE for more than 6 months.

Due to the length of Petitioner’s detention, the

denial of travel documents by Bosnia-Herzegovina, his claim that he does not pose
a danger to the public, and the availability of housing with his relatives who are
U.S. citizens, petitioner argues that he should be released on supervision. See

Zadvydas v. Davis, 533 U.S. 678 (2001).
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.
1

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.

2

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 shall be dismissed from this case.
Pending Motion
The motion for appointment of counsel (Doc. 2) is REFERRED to the
United States Magistrate Judge for consideration.
Disposition
IT IS HEREBY ORDERED that Illinois Attorney General Lisa Madigan,
DHS Secretary John F. Kelly, Ricardo A. Wong, and the Southern District of
Illinois Field Office (which is not a person) are DISMISSED from this action.
IT IS FURTHER ORDERED that the Warden of the Immigration Detention
Facility/Pulaski County Detention Center shall answer the petition within thirty
days of the date this Order is entered. 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.

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Pursuant to Federal Rule of Civil Procedure 4(i), the CLERK is DIRECTED
to send a copy of the letter constituting service, the 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
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 obligation to keep the Clerk (and
each opposing party) informed of any change in his whereabouts during the
pendency of this action. This notification shall be done in writing and not later
than seven (7) 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.

Digitally signed by
Judge David R.
Herndon
Date: 2017.07.13
15:53:17 -05'00'

41(b).
IT IS SO ORDERED.
Dated: July 13, 2017

United States District Judge

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