Anyimu v. Department of Homeland Security
MEMORANDUM AND ORDER denying Petitioner's renewed petition for habeas corpus. Signed by District Judge John W. Lungstrum on 11/17/2017. (mls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SAMWEL OKARI ANYIMU,
CASE NO. 16-3232-JWL
DEPARTMENT OF HOMELAND
MEMORANDUM AND ORDER
This matter is a renewed 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 filed his petition on November 17, 2016, seeking immediate release from
custody, asserting that his continued detention pending removal exceeded the six-month period
considered presumptively reasonable. On April 13, 2017, the Department of Homeland Security
(“DHS”) agreed to release Petitioner from custody pending removal, and the Court dismissed
this action without prejudice. (Docs. 21, 23.)
Petitioner was taken back into custody on
November 1, 2017. On November 7, 2017, Petitioner filed a Motion to Reopen 28 U.S.C.
§ 2241 Proceeding and for Immediate Hearing, again seeking his release from custody. The
Court granted the motion, held hearings on November 9th and 16th, 2017, and took the matter
under advisement. The Court finds that the renewed petition for writ of habeas corpus should be
I. Factual Background1
On April 13, 2017, the Court ordered Petitioner’s release from custody, based upon the
parties’ agreed request. (Doc. 21.) The Order set forth Petitioner’s conditions for release. Id.
Petitioner was in fact released from the Chase County Jail on April 13, 2017 (Doc. 22), and the
petition in this case was dismissed without prejudice on April 14, 2017 (Doc. 23).
On September 29, 2017, Deportation Officer Katy Casselle (“DO Casselle”) received
notification that the Kenyan Embassy had issued a travel document for Petitioner, and it was
mailed that night to the Wichita ICE Office. (Doc. 26–1, at 1–2, Updated Declaration of Katy
Casselle, ¶¶ 3, 4.) On October 16, 2017, a notice to report was sent to Petitioner, requesting that
he report to the Wichita ICE Office on November 1, 2017. Id. at ¶ 5. Petitioner reported to the
ICE Office on November 1, 2017, and was taken into ICE custody. Id. at ¶ 6. On November 3,
2017, DO Casselle received an Escort Threat Assessment (“ETA”) with supervisor approval for
Petitioner to fly without an escort. Id. at ¶ 8. The ETA is required as part of the necessary
documents to request a flight through the travel coordinator.
Id. On November 3, 2017,
DO Casselle submitted all necessary documents to the travel coordinator in Kansas City, MO,
and requested arrangements for Petitioner’s removal to Kenya. Id. at ¶ 9.
At the Court’s evidentiary hearing on November 16, 2017, John Seright, the travel
coordinator for ICE’s Kansas City Enforcement Removal Operations Office, testified regarding
the status of Petitioner’s travel arrangements. Deportation officers request travel arrangements
from Mr. Seright after they have obtained a travel document (issued by the destination country
The Court’s previous orders set forth a detailed factual background for this case. See Docs. 7, 20. The
Court will not repeat those facts, and will set forth only the additional facts occurring after Petitioner’s
release from custody on April 13, 2017.
authority) and an ETA. Mr. Seright then arranges the ticketing and the clearances required to go
to the destination country.
Mr. Seright testified that he secured airline tickets for Petitioner to fly from Kansas City,
Missouri, to Washington, D.C. Upon his arrival in D.C., officers will meet Petitioner, take him
into custody, and escort him to his flight the next day. After an overnight stay in D.C., Petitioner
will fly to Addis Ababa, Ethiopia, where he will have a one-hour layover before continuing on a
flight to Nairobi, Kenya. Petitioner will arrive at and depart from Terminal 2 in Addis Ababa.
Terminal 2 is a transit terminal and Petitioner will not make entry into Addis Ababa, nor will he
have contact with Ethiopian authorities there unless he tries to leave the transit terminal.
Respondent submitted Petitioner’s travel itinerary as Exhibit 1 for the Court’s in camera
review. The exhibit establishes that flights from Kansas City to D.C., from D.C. to Addis
Ababa, and from Addis Ababa to Nairobi, are secured for dates certain during the week of
December 10, 2017.
While the government may detain an “inadmissible” or criminal alien beyond the
statutory removal period, see 8 U.S.C. § 1231(a)(6),2 the government may not detain such an
alien indefinitely. Zadvydas v. Davis, 533 U.S. 678, 699 (2001). Instead, the detention of an
alien subject to a final order of removal for up to six months is presumptively reasonable in view
of the time required to accomplish removal. Id. at 701. Beyond that period, if the alien shows
8 U.S.C. § 1231(a)(6) provides that:
An alien ordered removed who is inadmissible under section 1182 of this title, removable under section
1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General
to be a risk to the community or unlikely to comply with the order or removal, may be detained beyond the
removal period and, if released, shall be subject to terms of supervision in paragraph (3).
that there is “no significant likelihood of removal in the reasonably foreseeable future, the
Government must respond with evidence sufficient to rebut that showing.” Id. Furthermore, as
the period of detention grows, “what counts as the ‘reasonably foreseeable future’ conversely
would have to shrink.” Id. The six-month presumption does not mean that every alien must be
released after that time, but rather an alien may be detained “until it has been determined that
there is no significant likelihood of removal in the reasonably foreseeable future.” Id.
Petitioner argues that inaccuracies in the travel document render it insufficient to show a
significant likelihood of removal in the reasonably foreseeable future. Petitioner points to the
issuing officer’s statement in the travel document that representations were made to him by
Petitioner, even though Petitioner does not recall speaking to him, and the statement that
Petitioner’s passport is lost, when in fact his expired passport is being held in his file.
Mr. Seright testified that the travel document was issued by the Kenyan Embassy and
acknowledges that Petitioner is a citizen or national of Kenya who is allowed to enter and remain
in Kenya. Mr. Seright stated that the statements, even if inaccurate, are more “informational”
and would have no effect on Petitioner’s ability to be admitted into Kenya. Mr. Seright testified
that there was “zero chance” that Petitioner would be denied entry based on the fact that he
would have his expired passport in hand. Mr. Seright testified that the type of inaccuracies in a
travel document that could potentially cause problems would be in regard to biographical
information affecting a person’s citizenship—i.e. a misspelled name, an inaccurate date of birth,
the wrong photo, etc. Furthermore, because the airline would be required to return Petitioner to
the United States at the airlines’ expense if he is refused entry, the airline will be meticulous
about reviewing his travel documents upon boarding in D.C. The testimony of Mr. Seright
satisfies the Court that the irregularities in the travel document do not render his removal
unlikely or prevent a finding of a significant likelihood of removal in the reasonably foreseeable
Petitioner also argues that any regulatory violation by DHS could serve as another basis
for Petitioner’s release. Petitioner questions who made the decision to take Petitioner back into
custody, and whether or not it was done pursuant to the proper process. Petitioner presented no
evidence of a violation of applicable regulations. Petitioner cites to 8 C.F.R. § 241.4(l)(2) in his
Supplemental Authority, arguing that “[i]t appears unlikely that ICE followed this regulation.”
(Doc. 29, at 6.) Section 241.4(l)(2) sets forth the authority for revoking release and returning to
custody an alien “previously approved for release under the procedures in this section.” 8 C.F.R.
§ 241.4(l)(2). There is no evidence that Petitioner was previously approved for release under
Petitioner was released on April 13, 2017, by agreement of the parties.
Petitioner has not shown that a failure to follow regulations justifies his release.
The initial burden is on Petitioner to show that there is no significant likelihood of
removal in the reasonably foreseeable future.
Airline tickets have been purchased for
Petitioner’s removal the week of December 10, 2017. Given the current posture of the case,
Petitioner has failed to meet that burden.
Because Petitioner’s removal appears imminent, the Court finds that he is not entitled to
habeas corpus relief and concludes this matter should be dismissed.
Petitioner’s removal not occur on or shortly after the week of December 10, 2017, Petitioner
should notify the Court immediately.
IT IS THEREFORE BY THE COURT ORDERED that Petitioner’s renewed petition
for habeas corpus is denied.
IT IS SO ORDERED.
Dated this 17th day of November, 2017, at Kansas City, Kansas.
s/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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