Anyimu v. Department of Homeland Security

Filing 20

MEMORANDUM AND ORDER ENTERED: This matter is set for hearing on 4/14/2017 at 01:00 PM in KC Courtroom 440 (JWL) before District Judge John W. Lungstrum. Signed by District Judge John W. Lungstrum on 04/05/17. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SAMWEL OKARI ANYIMU,
Petitioner,
v.

CASE NO. 16-3232-JWL

DEPARTMENT OF HOMELAND
SECURITY,
Respondent.
MEMORANDUM AND ORDER
This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241.
Petitioner is detained under an order of removal entered by the immigration court in Kansas City,
Missouri.

Petitioner seeks immediate release from custody, asserting that his continued

detention pending removal has exceeded the six-month period considered presumptively
reasonable. The Court found that Petitioner’s allegation that there is no significant likelihood of
removal in the reasonably foreseeable future was sufficient to shift the burden to Respondent to
rebut this showing. (Doc. 7.) The Court subsequently appointed counsel for Petitioner (Doc. 14)
and the matter has been fully briefed. See Docs. 9, 10, 12, 17, 18, and 19.
I. Background
On or about August 3, 2001, Petitioner, a native and citizen of Kenya, entered the United
States in Cleveland, Ohio, with an F-1 Student Visa.

On December 10, 2015, the U.S.

Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”)
issued a Notice to Appear, charging Petitioner with removability under INA § 237(a)(1)(C)(i)1
due to violation of his student visa on the grounds: (1) Petitioner did not attend Wichita State

1

8 U.S.C. § 1227(a)(1)(C)(i).

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University from May 2003 to July 18, 2006; (2) Petitioner enrolled at Butler County Community
College in August 2004 without proper authorization from DHS; and (3) Petitioner accepted
employment for wages or other compensation without authorization from DHS. (Doc. 4–1, at 4.)
On the same day, Petitioner was served a copy of the Notice to Appear and was issued a $10,000
bond by ICE. Petitioner was first taken into custody on December 10, 2015, and has remained in
custody since that date.
On February 11, 2016, an immigration judge ordered Petitioner removed to Kenya. On
February 26, 2016, Petitioner filed an appeal from the removal order. On May 13, 2016, the
Board of Immigration Appeals (“BIA”) dismissed Petitioner’s appeal and the removal order
became final.
Kenya requires a travel document for anyone being removed who is not in possession of
a valid passport. (Doc. 4–1, at 6.) Because Petitioner’s passport is expired, Deportation Officer
Katy Casselle (“Casselle”) sent a travel document request via UPS to the Kenya Consulate in
Los Angeles, California (the “Consulate”), on June 22, 2016. Casselle sent emails to the
Consulate on July 14, July 27 and August 2, 2016, to inquire about the status of the travel
document request. The emails were returned as undeliverable, due to the Consulate’s inbox
being full. Casselle also left voicemails with the Consulate on July 27 and August 2, 2016, to
inquire about the status of the travel document request; but she did not receive a call back. On
August 2, 2016, Casselle requested assistance from ICE Headquarters to obtain a travel
document for Petitioner by emailing Robert Tremont, who is the Point of Contact for cases

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involving Kenyan nationals (“Tremont”). Tremont relayed that the Consulate is still reviewing
the travel request.2
On August 4, 2016, Casselle completed the Post Order Custody Review Worksheet
(“POCRW”) and recommended that Petitioner continue to remain in ICE custody based on the
pending request for a Kenya travel document. (Doc. 3, at 7–14.) The POCRW provides that
Petitioner does not appear to meet any of the criteria of 8 CFR § 241.14 for continued detention.
On August 9, 2016, the Enforcement and Removal Office (“ERO”) issued a “Decision to
Continue Detention,” finding that “ICE has submitted an application for a travel document to the
Kenya Embassy. ICE expects that the Embassy will issue the travel document in the near
future.” (Doc. 5–1, at 1.) Petitioner was served with a copy of the decision to continue his
detention on the same day.
On November 2, 2016, Casselle completed the Transfer Checklist for the 180-day Post
Order Custody Review (“POCR”), and transferred the checklist to ICE Enforcement and
Removal Office Headquarters Removal and International Operations (“ICE/ERO HQ RIO”). A
Decision to Continue Detention, dated November 8, 2016, was entered by ICE/ERO HQ RIO,
and the decision was served on Petitioner on November 16, 2016. (Doc. 5–1, at 2.) Petitioner

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Although Casselle has provided five declarations in this case, she mentions for the first time in her
declaration signed on 3/23/17, that there was additional correspondence with Tremont. See Doc. 4–1
(declaration signed on 12/16/16); Doc. 9–1 (declaration signed on 2/16/17); Doc. 12–1 (declaration signed
on 2/21/17); Doc. 18–2 (declaration signed on 3/21/17); and Doc. 18–1 (declaration signed on 3/23/17).
Casselle states in the 3/23/17 declaration that on August 3, 2016, Tremont stated that he had met with the
Embassy, and that they were looking into this case; on August 10, 2016, Tremont notified Casselle that he
had a meeting scheduled with the Embassy the previous day, but the Embassy cancelled the meeting before
it took place; on October 11, 2016, Casselle emailed Tremont to ask if there were any updates on the
pending travel document request; on October 13, 2016, Tremont notified Casselle that he had emailed the
Embassy, quoting the International Convention on Civil Aviation, and encouraging issuance of the travel
document; on October 25, 2016, the Embassy notified Tremont that they had sent for verification in their
immigration office in Nairobi; and on December 29, 2016, Casselle emailed Tremont to ask if there were
any updates and Tremont notified her that the issuing official was in Nairobi until February. (Doc. 18–1, at
7–8.)

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filed this petition for writ of habeas corpus on November 17, 2016.3
On January 18, 2017, the Court entered a Memorandum and Order (Doc. 7), finding that
Petitioner’s allegation that there is no significant likelihood of removal in the reasonably
foreseeable future was sufficient to shift the burden to Respondent to rebut this showing. The
Court ordered Respondent to provide a sufficient rebuttal within thirty days, finding that absent
such a showing, the petition for writ of habeas corpus would be granted.
On February 1, 2017, Casselle completed the Transfer Checklist for the 270-day POCR
review, and transferred the checklist to ICE/ERO HQ RIO. (Doc. 9–1, at 8.) Also on that date,
Casselle spoke by phone with Evelyn4 at the Consulate (“Consul Makhanu”). Id. Consul
Makhanu stated that an application for Emergency Certificate was needed, with Petitioner’s
signature.

Id.

Casselle faxed the application to Petitioner, with instructions to sign the

application and fax it back to Casselle. Id. Casselle spoke with Petitioner on the phone and he
stated that he did not want to sign anything without first speaking with his Consulate. Id.
Casselle provided Petitioner with the phone number for his Consulate, and instructed Petitioner
to fax the application back to her when it was completed. Id. Casselle notified Petitioner that
this request was a requirement for his travel document application, and if he refused to sign the
application, he was failing to comply. Id.
On February 6, 2017, Casselle spoke with Petitioner on the phone and he stated again that
he did not want to sign anything without first speaking to his Consulate. Casselle reminded him
that the request was a requirement for his travel documents and his refusal to sign constituted
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Petitioner previously filed a habeas petition in this Court (Anyimu v. DHS, No. 16-3131-JWL). Because
that case was filed within four months of Petitioner’s final removal order, the Court dismissed the matter on
September 7, 2016, finding Petitioner’s detention presumptively reasonable.
4
Petitioner notes that the Kenya Consul’s correct name is Everleen Makhanu.
See
http://www.kenyaconsulatela.com/staff.aspx (last visited April 3, 2017).

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failure to comply. Casselle also called the Consulate and left a voicemail indicating that Wichita
ICE had a detainee in custody who was requesting to speak with the Consulate. A Decision to
Continue Detention was entered by ICE/ERO HQ RIO on February 6, 2017, and was personally
served on Petitioner on February 9, 2017.
On February 16, 2017, when asked how many times Petitioner had attempted to contact
the Consulate since he received the application to sign, Petitioner stated that he had attempted to
contact the Consulate once either the previous week or the week before.
The original application presented to Petitioner was inaccurate and only included one
page of the five-page application.

Casselle sent Petitioner a corrected, complete form on

February 21, 2017. Petitioner sought to speak with counsel and the Consulate, and this Court
appointed him counsel on February 24, 2017. As soon as counsel was afforded an opportunity to
review the case and confer with Petitioner, Petitioner signed the completed application and faxed
it back to Casselle on March 8, 2017. Casselle sent the signed document to the Consulate via
UPS Overnight.
On March 10, 2017, Casselle spoke by phone with Consul Makhanu at the Consulate,
who informed Casselle that the Consulate needed the Emergency Certificate, with an original
signature, instead of a faxed copy. On March 13, 2017, Casselle received the document with an
original signature and sent it to the Consulate via UPS Overnight. On March 14, 2017, Casselle
verified that the Consulate had received the document with the original signature, and a
telephonic interview was scheduled for March 15, 2017.
On March 14, 2017, Tremont notified Casselle that the Consulate has been issuing travel
documents for other offices, so they would hold off on pursuing the document from the Embassy
for now, since the Consulate “has been more involved.”
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On March 15, 2017, Consul Makhanu interviewed Petitioner by telephone.

On

March 17, 2017, Casselle spoke with Consul Makhanu, who stated that she may be able to
complete and issue the travel document for Petitioner in about two weeks.
II. Discussion
Petitioner challenges his continued detention beyond the six-month limit considered
presumptively reasonable by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001).
The Court previously held that Petitioner’s allegations that DHS had failed to secure travel
documents for Petitioner and had not been contacted by the Consulate, were sufficient to show
that there is no significant likelihood of removal within the reasonably foreseeable future. The
Court noted that “[a]lthough ICE has attempted to contact the Kenya Consulate, there is no
evidence that the Consulate has responded to ICE. Petitioner has cooperated fully with the
efforts by ICE to remove him during the removal period, by providing identity documents
(passport, birth certificate and driver’s license) and necessary biographical information, and by
complying with all demands by ICE.”

(Doc. 7, at 5.)

The Court noted that “[a]lthough

Respondent has set forth ICE’s attempts to contact the Kenya Consulate, there is no evidence
that the Consulate has actually responded or indicated that it is taking steps to provide
Petitioner’s travel documents.” Id. The Court held that Petitioner’s allegations were sufficient to
shift the burden to Respondent to rebut this showing, and directed Respondent to show that
Petitioner’s removal in the foreseeable future is likely. Id. at 6.
In its Response to the Court’s Memorandum and Order, Respondent alleged that
Petitioner’s refusal to sign documents and cooperate with ICE in his removal justifies his
continued detention under 8 U.S.C. § 1231(a)(1)(C). (Doc. 9, at 5.) However, in its Addendum
to Response, Respondent acknowledges that it inferred that Petitioner was not cooperating
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because “the only information available to Respondent was that Petitioner was refusing to sign
the documents because he wanted to talk to the Kenyan Consulate.” (Doc. 12, at 1.) Respondent
subsequently learned that Petitioner was refusing to sign the document because his date of birth
was incorrect in the document, and acknowledged that “the fact that it was incorrect diminishes
the willfulness of Petitioner’s lack of cooperation in his refusal to sign an incorrect document.”
Id. at 2. Respondent adds that Petitioner still refused to sign the corrected document until he
could talk to the Consulate. Id.
Petitioner argues that he was presented with a single page from the application on
February 1, 2017, which was unexplained, inaccurate, and incomplete. Petitioner was given one
page from a five-page application and was asked to sign it stating that “the information given in
the application is correct to the best of my knowledge and belief.” Petitioner could not declare
this as he had only been given one page; there was no heading on the document to inform him of
its source, purpose, or legitimacy; it misstated his date of birth; it misstated his address; and it
incorrectly stated that he had not “previously held or applied for a passport of any description.”
See Doc. 10, at 7–8.
The Court rejects any argument that Petitioner’s continued detention is justified due to
his alleged refusal to cooperate with ICE in his removal. His refusal to sign the isolated and
inaccurate page of the application was reasonable. Petitioner has cooperated fully with the
efforts by ICE to remove him during the removal period, by providing identity documents
(passport, birth certificate and driver’s license) and necessary biographical information, and by
complying with all demands by ICE. Cf. Aiodun v. Mukasey, 264 F. App’x 726, 729 (10th Cir.
2008) (unpublished) (finding that the main reason petitioner remained in the United States was

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his repeated court challenges to removal and refusal to cooperate with ICE officials in obtaining
a passport and other necessary travel documents).
Respondent also argues that additional follow-ups and contact with the Consulate have
been made in an effort to expedite Petitioner’s removal. (Doc. 9, at 2.) Respondent points to
Casselle’s contacts with the Consulate, the Consulate’s receipt of the signed Emergency
Certificate, Petitioner’s interview, and Consul Makhanu’s response that she “may be able to
complete and issue the travel document for Petitioner in about two weeks.” Despite all of the
delays in this case, Respondent argues that now there is a significant likelihood that Petitioner
will be removed in the reasonably foreseeable future. Respondent asserts that the Consulate has
estimated the issuance of travel documents within two weeks of Petitioner’s March 15, 2017
interview, and actual deportation would occur within ten to fifteen days after that, or mid-April.
Respondent argues that Petitioner is unlike the aliens in Zadvydas, who faced indefinite
detention because their countries of origin would not accept them.

However, nothing in

Zadvydas limits relief to those whose receiving countries refuse to accept them. See, e.g.,
Younes v. Lynch, No. 16-13556, 2016 WL 6679830, at *3 (E.D. Mich. Nov. 14, 2016) (finding
that the apparent bureaucratic complications prevented a finding that the necessary documents
would issue “in the reasonably foreseeable future”); Drummond v. Lynch, No. 4:15cv560RH/CAS, 2016 WL 4154925, at *4 (N.D. Fla. June 27, 2016) (finding that government’s claimed
anticipation of receiving documents in the reasonably foreseeable future did not satisfy burden of
rebutting petitioner’s showing that removal was not significantly likely), report and
recommendation adopted by 2016 WL 4157348 (N.D. Fla. Aug. 4, 2016); see also Seretse v.
Ashcroft, 215 F. Supp. 2d 37, 50 (D.C. Cir. 2002) (“Respondents have not demonstrated to this
Court that any travel documents are in hand, nor have they provided any evidence, or even
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assurances from the Liberian government, that travel documents will be issued in a matter of
days or weeks or even months.”) (citing Okwilagwe v. INS, No. 3–01–CV–1416–BD, 2002 WL
356758, at *2–3 (N.D. Texas March 1, 2002) (alien detained for eleven months after INS
represented that it would have travel documents in a few days; court found that if INS did not
have documents in hand, it failed to sustain its burden of showing that alien’s removal would
occur in the reasonably foreseeable future)).
Petitioner argues in his Surreply filed on March 31, 2017, that it has been more than two
weeks since Petitioner’s interview with the Consulate and there has been no news of any travel
documents arriving and the government has offered no written assurances from anyone at the
Consulate or the Kenyan Embassy that any documents are forthcoming. Petitioner asserts that he
is well situated for release. He has housing, transportation, a job prospect (if work is authorized),
and ample community support. Petitioner states that he will abide by any reporting and other
conditions deemed appropriate upon his release from detention.

Respondent has not even

suggested that Petitioner is a danger to the community, and there is no significant evidence
suggesting that Petitioner is a flight risk.
Respondent cites Fahim v. Ashcroft, 227 F. Supp. 2d 1359, 1366 (N.D. Ga. 2002), for the
proposition that “[w]hile the American government can be faulted if its bureaucracy causes
delay, it cannot be held responsible for the inefficiencies, or worse, of the bureaucracies of other
countries.” (Doc. 18, at 6–7.) While the Court recognizes that the Consulate has been difficult
to reach and unresponsive, the Court cannot say that Respondent’s actions did not contribute to
the delay in this case. Casselle did not send a travel document request to the Consulate until
forty days after Petitioner’s removal order became final. The record suggests that Casselle did
nothing regarding the request to the Consulate from the time she sent an email and left a
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voicemail for the Consulate on August 2, 2016, until she spoke with Consul Makhanu on
February 1, 2017. The August 9, 2016 Decision to Continue Detention stated that “ICE expects
that the Embassy will issue the travel document in the near future.” (Doc. 5 – 1, at 1.) Over
eight months later, on March 14, 2017, Tremont notified Casselle that they would hold off on
pursuing the document from the Embassy for now, since the Consulate “has been more
involved.”
The Court previously recognized that as the period of detention grows, “what counts as
the ‘reasonably foreseeable future’ conversely would have to shrink.” Doc. 7, at 5 (citing
Zadvydas, 533 U.S. at 701). Contrary to Respondent’s estimate, the travel documents have not
been issued within two weeks of Petitioner’s March 15, 2017 interview. Respondent also
suggested that actual deportation would occur by mid-April. The Court sets this matter for
hearing on April 14, 2017. If Petitioner has not been removed by that date, the Court is inclined
to order his immediate release pending his removal. Petitioner’s release will be subject to
supervision in accordance with 8 U.S.C. § 1231(a)(3), and any other terms and conditions
requested by Respondent that the Court deems appropriate.
IT IS THEREFORE BY THE COURT ORDERED that this matter is set for hearing
on April 14, 2017, at 1:00 p.m., in KC Courtroom 440 before District Judge John W.
Lungstrum.
IT IS SO ORDERED.
Dated this 5th day of April, 2017, at Kansas City, Kansas.

s/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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