BAMBA v. HENDRICKS et al

Filing 4

OPINION. Signed by Judge Susan D. Wigenton on 6/20/14. (jd, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MAMADOU BAMBA,
Petitioner,
v.
ROY L. HENDRICKS, et al.,
Respondents.

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Civil Action No.: 14-2735 (SDW)
OPINION

APPEARANCES:
JOSE GIOVANNI HERNANDEZ TORRES, Petitioner Pro Se
A 044 182 542
Etowah County Detention Center
827 Forrest Avenue
Gadsden, Alabama 35901
WIGENTON, District Judge
Petitioner Mamadou Bamba is an immigration detainee confined at the Essex County
Correctional Facility in Newark, New Jersey. He brings this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241,1 challenging his post-removal order detention as
unconstitutionally indefinite. This Court will summarily dismiss the Petition, without prejudice,
because Petitioner has not alleged facts showing that he has been detained for more than six

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Section 2241 provides in relevant part:

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the
district courts and any circuit judge within their respective jurisdictions.
(c) The writ of habeas corpus shall not extend to a prisoner unless... (3) He is in custody
in violation of the Constitution or laws or treaties of the United States ....

months after the beginning of the removal period, as required by Zadvydas v. Davis, 533 U.S.
678, 701 (2001), or that his detention is otherwise in violation of federal law.
I. BACKGROUND
Petitioner states that he is a native and citizen of Ivory Coast. (ECF No. 1, Petition at ¶¶
6, 12.) He first entered the United States in September 1997. (Id., ¶ 13.) Petitioner was taken
into custody by the United States Department of Homeland Security/Immigration and Customs
Enforcement (“DHS/ICE”) on March 16, 2013, and has remained in custody since that date. (Id.,
¶ 6.) He was ordered removed on October 12, 2013, on the grounds that he had been convicted
of a crime which constituted a removable offense under Sections 237 or 212 of the Immigration
and Nationality ACT (“INA”). (Id., ¶ 15.) Petitioner alleges that he waived his right to appeal
from the order of removal, thus making it final as of the date it was entered by the Immigration
Judge, on October 12, 2013. (Id., ¶ 16.) Petitioner alleges that he has complied with the
DHS/ICE in providing the necessary information for obtaining travel documents. (Id., ¶ 18.)
Petitioner further alleges that, on December 10, 2013, he was removed from the United
States for Ivory Coast via Air France with a DHS/ICE escort. Petitioner contends that, upon
arrival in Paris, France, French authorities asked for Petitioner’s travel documents but the
DHS/ICE could not produce them because they allegedly had lost them. Petitioner was then
returned to the United States. Petitioner states that he applied for another passport or travel
documents from Ivory Coast Embassy, but the Ivory Coast will not issue another passport
because the “lost” passport does not expire until 2018. DHS/ICE officer John Bronski gave
Petitioner a passport application for Sierra Leone, but Petitioner did not designate this country

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for his removal. (Id., ¶ 22.) Petitioner claims these facts demonstrate that his removal is not
practicable or likely in the foreseeable future.
II. ANALYSIS
A. Standard of Review
“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). Habeas Rule 4 requires a district court to examine a
habeas petition prior to ordering an answer and “[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.” 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 petitioner] to
relief”).
B. Legality of Detention
When an alien’s order of removal becomes final, as alleged by petitioner here, 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. § 1231(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 ‘removal period’”). This 90–
day removal period begins on the latest of the following:
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(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. § 1231(a)(1)(B).
Section § 1231(a)(2) requires DHS to detain aliens during this 90–day removal period.
See 8 U.S.C. § 1231(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, § 1231(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. § 1231(a)(6).
The Supreme Court held in Zadvydas that § 1231(a)(6) does not authorize the Attorney
General to detain aliens indefinitely beyond the removal period, but “limits an alien’s postremoval-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.
Id. at 701. The Supreme Court held that, to state a claim under § 2241, the alien must show that
he has been detained beyond the six-month presumptively reasonable period, and must provide

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good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future. Zadvydas, 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 post removal 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, Petitioner states that an Immigration Judge ordered his removal on October
12, 2013, and that he waived his right to appeal, thus making his removal order administratively
final on October 12, 2013. However, an order of removal becomes “final upon the earlier of (i) a
determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of
the period in which the alien is permitted to seek review of such order by the Board of
Immigration Appeals.” 8 U.S.C. § 1101(a)(47)(B); see also 8 C.F.R. § 1241.1; Giraldo v.
Holder, 654 F.3d 609, 611 (6th Cir. 2011); United States v. Calderon–Minchola, 351 F. App'x
610, 611 n. 1 (3d Cir. 2009). An appeal to the Board of Immigration Appeals of the decision of
an Immigration Judge must be filed within 30 calendar days after the stating of an oral decision
or the mailing of a written decision. See 8 C.F.R. § 1003.38(b). Thus, Petitioner’s order of
removal became administratively final when the time to appeal to the Board of Immigration
Appeals expired 30 days later on November 12, 2013.

See 8 U.S.C. § 1231(a)(1)(B)(i).

Consequently, the six-month presumptively reasonable period of post-removal-period detention
did not expire until May 12, 2014. Because Petitioner filed his § 2241 Petition before the
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expiration of the presumptively reasonable six-month period for removal, his detention does not
violate § 1231(a)(6), as interpreted by Zadvydas.
In the absence of such an initial showing, the Government 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 showing.”); see also Barenboy v. Attorney General of U.S., 160
F. App'x 258, 261 n. 2 (3d Cir. 2005) (“Once the six-month period has passed, the burden is on
the alien to provide[ ] 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).
Petitioner also generally alleges that the DHS have violated his due process rights by
detaining him for more than six months after his removal order became final. 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; cf. 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 postremoval detention of up to six months is reasonable, but that a bond hearing may be required
after that time.”).

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Petitioner does not assert facts showing that his detention is “in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); see, e.g., Akinwale
v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002) (“[I]n 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.”). Petitioner alleges that there is no likelihood of his removal
because the DHS/ICE allegedly lost his travel documents. He provides no documentary proof of
this claim. Instead, Petitioner has attached documents to his petition showing that he has
repeatedly failed to comply with 8 C.F.R. § 241.4(g), which requires Petitioner to assist in
obtaining travel documents for his removal. The ICE issued a Notice of Failure to Comply
Pursuant to 8 C.F.R. § 241.4(g) on April 10, 2014, documenting that Petitioner had been advised
of his obligation to comply on five separate occasions, on October 17, 2013, October 18, 2013,
December 2, 2013, January 17, 2014 and February 6, 2014. The Notice also informed Petitioner
that the information he has provided to ICE about his date and place of birth were determined to
be false by Ivory Coast authorities. (ECF 1-2, Petition at Exhibit “A”.) Furthermore, in a
January 13, 2014 Decision to Continue Detention, the ICE informed Petitioner that his custody
review showed that Petitioner had been ordered removed in the past under three different
identities, and that Petitioner “has engaged in extensive fraud to obtain immigration benefits,”
had falsified records in 2011, and had assaulted an ICE officer in 2013 who was attempting to
effectuate Petitioner’s removal. (Id.)
Accordingly, Petitioner has not shown any due process violations with respect to the
removal process. There is no support in the immigration record that Petitioner himself provided
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to show that Petitioner’s removal is not practicable. Rather, the record plainly shows that
Petitioner has not cooperated with his removal, and cannot credibly allege that his removal by
the Government is not reasonably foreseeable. Therefore, the petition is dismissed without
prejudice to the filing of a new § 2241 petition in the future, in the event that Petitioner can
allege facts at that time showing good reason to believe that there is no significant likelihood of
his removal in the reasonably foreseeable future.
III. CONCLUSION
For the foregoing reasons, this Court dismisses the petition without prejudice.
appropriate Order follows.

_s/ Susan D. Wigenton________
SUSAN D. WIGENTON
United States District Judge
Dated: June 20, 2014

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