KONATE v. TRABUCCO et al
Filing
3
OPINION. Signed by Judge Dennis M. Cavanaugh on 11/8/13. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
OUMAR KONATE,
Civil Action No, 13-3 195 (DMC)
Petitioner,
v.
OPINION
JOSEPH TRABUCCO,
Respondent.
APPEARANCES:
OUMAR KONATE, A 096 265 640
Delaney Hall (ICE)
451 Dorernus Avenue
Newark, New Jersey 07105
Petitioner Pro Se
CAVANAUGH, District Judge:
Oumar Konate flied a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C.
§
2241.
challenging his post-removal-period detention at Delaney Hall, where he is being held in the
custody of the Department of Homeland Security (“DHS”) without a bond hearing. Although the
government has detained Mr. Konate beyond the six-month presumptively reasonable period of
post-removal-period detention (which expired on May 6, 2013), this Court is constrained to
dismiss the Petition because it does not allege facts showing that there is “good reason to believe
that there is no significant likelihood of removal [to the Republic of Congoj in the reasonably
foreseeable future,” Zadvydas v. Davis, 533 U.S. 678, 701 (2001), or that Mr. Konate’s detention is
otherwise in violation of federal law. The dismissal is without prejudice to the filing of a new
§
2241 petition (in a new case), in the event that Mr. Konate can allege facts showing good reason to
believe that there is no significant likelihood of his removal in the reasonably foreseeable future.
I. BACKGROUND
Oumar Konate asserts that he is a native and citizen of the Republic of Congo. (Petition,
ECF No. 1 at 3-4.) He alleges that on April 7, 2005, an immigration judge ordered his removal
and on January 23, 2006, his motion to reopen was denied. He asserts that DHS took him into
custody on November 6, 2012, and he has remained in custody since that date. He alleges that,
although he “cooperated fully” with efforts to remove him, “[tb date, however, [DHSj has been
unable to remove [him] to the Republic of Congo or any other country.” Id. at 4. Konate further
asserts that his “removal to the Republic of Congo or any other country is not significantly likely to
occur in the reasonably foreseeable future [and t]he Supreme Court held in Zadvydas and Martinez
that [DHS’sj continued detention of someone like me under such circumstances is unlawful.” Id,
at 5. He maintains that his detention is not statutorily authorized and violates due process. He
seeks a writ of habeas corpus directing respondents to immediately release him.
IL DISCUSSION
A. Jurisdiction
Under 28 U.S.C.
§ 224 1(c), habeas jurisdiction ‘sha11 not extend to a prisoner unless.
[h]e is in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C.
§
224 1(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). This Court has subject matter
jurisdiction over the Petition under
§ 2241 because Petitioner was detained within its jurisdiction
in the custody of the DHS at the time he filed his Petition, see Spencer v. Kemna, 523 U.S. 1, 7
(1998), and he asserts that his detention violates federal law and his constitutional rights. See
Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d Cir. 2005).
B. Standard of Review
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“Federal courts are authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face,” McFarland v. Scott, 512 U.S. 849, 856 (1994); United States v,
Thomas, 221 F.3d 430,437 (3d Cir. 2000); Siers v. Ryan, 773 F.2d 37,45 (3d Cir. 1985). Habeas
Rule 4 requires a district court to examine a habeas petition prior to ordering an answer and [ijf 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.” 28 U.S.C.
§ 2254 Rule 4, applicable through Rule
1(b).
Dismissal without the filing
of an answer or the State court record is warranted ‘if it appears on the face of the petition that
petitioner is not entitled to relief.” Id.; see also McFarland, 512 U.S. at 856; Thomas, 221 F.3d at
437 (habeas petition may be dismissed where “none of the grounds alleged in the petition would
entitle [the petitionerl to relief’).
C. Legality of Detention
“Detention during removal proceedings is a constitutionally permissible part of that
process.” Demore v. Kim, 538 U.S. 510 (2003). The Immigration and Nationality Act (“INA”)
authorizes the Attorney General of the United States to issue a warrant for the arrest and detention
of an alien pending a decision on whether the alien is to be removed from the United States. See 8
U.S.C.
§
1226(a) (“On a warrant issued by the Attorney General, an alien may be arrested and
detained pending a decision on whether the alien is to be removed from the United States.
.
Once an alien’s order of removal is final, the Attorney General is required to remove him or her
from the United States within a 90-day “removal period.” See 8 U.S.C.
§ 123 1(a)(1)(A) (“Except
as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall
remove the alien from the United States within a period of 90 days (in this section referred to as the
.3
removal period’).”) 8 U.S.C.
§
1231(a)(1)(A). This 90-day removal period begins on the latest
of the following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a
stay of the removal of the alien, the date of the court’s final order.
(iii) If the alien is detained or confined (except under an
immigration process), the date the alien is released from detention
or confinement.
8 U.S.C.
§
123 1(a)(1)(B).
Section
See 8 U.S.C.
§
§
1231 (a)(2) requires DHS to detain aliens during this 90-day removal period.
123 1(a)(2) (“During the removal period, the Attorney General shall detain the
alien”). However, if DHS does not remove the alien during this 90-day removal period, then
§
1231 (a)(6) authorizes DHS to thereafter release the alien on bond or to continue to detain the alien.
Specifically,
§
123 1(a)(6) provides:
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 of removal, may be detained beyond the removal period and,
if released, shall be subject to the terms of supervision in paragraph
(3).
8 U.S.C.
§
123 1(a)(6).
The Supreme Court held in Zadvydas that
§
123 1(a)(6) does not authorize the Attorney
General to detain aliens indefinitely beyond the removal period, but “limits an alien’s
post-removal-period detention to a period reasonably necessary to bring about that alien’s removal
from the United States.” Zadvydas, 533 U.S. at 689. To guide habeas courts, the Supreme Court
recognized six months as a presumptively reasonable period of post-removal-period detention.
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Id. at 701. The Supreme Court also held that, to state a claim under
§ 2241, the alien must provide
in the petition good reason to believe that there is no significant likelihood of removal in the
reasonably foreseeable future. Zathydas, 533 U.S. at 701. Specifically. the Supreme Court
determined:
After this 6-month period, once the alien provides good reason to
believe that there is no significant likelihood of removal in the
reasonably foreseeable future, the Government must respond with
evidence sufficient to rebut that showing. And for detention to
remain reasonable, as the period of prior postremoval confinement
grows, what counts as the “reasonably foreseeable future”
conversely would have to shrink. This 6-month presumption, of
course, does not mean that every alien not removed must be released
after six months. To the contrary, an alien may be held in
confinement until it has been determined that there is no significant
likelihood of removal in the reasonably foreseeable future.
Zadvydas, 533 U.S. at 701.
In this case, Mr. Konate states that he was taken into DHS custody on November 6, 2012.
The six-month presumptively reasonable period of post-removal-period detention expired on May
6, 2013. However, the Zadvydas Court emphasized that “[tihis 6-month presumption [j does not
mean that every alien not removed must be released after six months.” Zathydas, 533 U.S. at
701. Rather, the Supreme Court explained that, to state a claim for habeas relief under 2241, an
§
alien must provide in the petition good reason to believe that his or her removal is not foreseeable.
In the absence of factual allegations supporting Mr. Konate’s conclusion that his removal is not
reasonably foreseeable, DHS does not have to respond by showing that removal is reasonably
foreseeable. See Zadvydas, 533 U.S. at 701 (“After this 6-month period, once the alien provides
good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future, the Government must respond with evidence sufficient to rebut that
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showing.”); see also Barenboy v. Attorney General of US., 160 Fed. App’x 258, 261 n.2
(3d Cir.
2005) (“Once the six-month period has passed, the burden is on the alien to provide[j good reason
to believe that there is no significant likelihood of removal in the reasonably foreseeable future
Only then does the burden shift to the Government, which must respond with evidence
sufficient to rebut that showing”) (citation and internal quotation marks omitted).
Mr. Konate also argues that DHS violated due process by failing to give him a hearing.
This claim lacks merit because, under the rationale of Zadvydas, an alien is not entitled to a hearing
unless he has been detained beyond the presumptively reasonable six month period and he alleges
facts showing that there is no significant likelihood of removal in the reasonably foreseeable
future. Zadvydas, 533 U.S. at 701; çf Wilson v. Hendricks, Civ. No. 7315 (KM). 2013 WL
324743 at *2 (D.N.J. Jan. 25, 2013) (“The U.S. Supreme Court has adopted a rule of thumb that a
post-removal detention of up to six months is reasonable, but that a bond hearing may be required
after that time.”).’
The instant Petition must be dismissed because Mr. Konate “has made no showing
whatever that there is ‘no significant likelihood of removal in the reasonably foreseeable future,”
Encarnacion-Mendez v. Attorney General of US,, 176 Fed. App’x 251, 254 (3d Cir. 2006), and he
has not otherwise shown that his detention is “in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C.
§ 224 1(c)(3); see, e.g., Joseph v. United States, 127 Fed. App’x 79,
81 (3d Cir. 2005) ( “Under Zadvydas, a petitioner must provide ‘good reason’ to believe there is no
This Court declines to adopt the Ninth Circuit’s holding in Dioufv. Napolitano, 634 F.3d 1081,
1092 (9th Cir. 2011), that “an alien facing prolonged detention under 1231 (a)(6) is entitled to a
§
bond hearing before an immigration judge and is entitled to be released from detention unless the
government establishes that the alien poses a risk of flight or a danger to the community.” See
Davies v. Hendricks, Civ. No. 13-2806 (WJM) .2013 WL 2481256 *5 n.2 (D.N.J. June 10.
2013).
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likelihood of removal, 533 U.S. at 701, and Alva has failed to make that showing here.”);
Soberanes v, Cornlört, 388 F. 3d 1305 (10th Cir. 2004) (affirming dismissal of 2241 petition
§
challenging detention pursuant to
§ 123 1(a)(6) where petitioner failed to provide good reason to
believe that there is no likelihood of removal); Akinwale v. Ashcrofi. 287 F. 3d 1050, 1052 (11th
Cir. 2002) (“in order to state a claim under Zadvydas the alien not only must show post-removal
order detention in excess of six months but also must provide evidence of a good reason to believe
that there is no significant likelihood of removal in the reasonably foreseeable future”). The
dismissal is without prejudice to the filing of a new
§ 2241 petition (in a new case), in the event
that Mr. Konate can allege facts showing good reason to believe that there is no significant
likelihood of his removal in the reasonably foreseeable future.
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III.
CONCLUSION
For the foregoing reasons, this Court will dismiss the Petition.
DENNIS M.
DATED:
r
,2013
2
Alternatively, if Mr. Konate has reason to believe that his removal in the reasonably foreseeable
future is not likely, he may at any time ask DHS to review his detention and he may submit written
documentation supporting his request. See 8 C.F.R. § 241.13(d)(1) (“An eligible alien may
submit a written request for release to [DHSj asserting the basis for the alien’s belief that there is
no significant likelihood that the alien will be removed in the reasonably foreseeable future, The
alien may submit whatever documentation to [DHSJ he or she wishes in support of the assertion
that there is no significant likelihood of removal in the reasonably foreseeable future.”)
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