ELLIOTT vs. LYNCH, et al

Filing 9

OPINION. Signed by Judge Susan D. Wigenton on 2/17/16. (DD, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ARTHUR ELLIOTT,

Civil Action No. 15-6906 (SDW)

Petitioner,
v.

OPINION

LORETTA LYNCH, et al.,
Respondents

WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Arthur
Elliott, pursuant to 28 U.S.C. § 2241. (ECF No. 1). The Government has filed a response to the
petition (ECF No. 5), to which Petitioner has replied (ECF No. 7). For the reasons set forth
below, this Court will deny the petition without prejudice.

I. BACKGROUND
Petitioner, Arthur Elliott, is a native and citizen of Sierra Leone. (Document 1 attached to
ECF No. 5 at ¶ 5). Petitioner entered this country in 2000 as a refugee, and became a lawful
permanent resident in October 2004. (Id.). On April 12, 2013, Petitioner was convicted of a
firearms offense in the Superior Court of New Jersey and was sentenced to seven years
imprisonment. (Id.).
On June 18, 2013, immigration officials issued a notice to appear charging Petitioner with
removability on the basis of his 2013 conviction. (Id. at ¶ 6). On August 12, 2014, Petitioner was
taken into custody by immigration officials following Petitioner’s release from state custody. (Id.).
Petitioner entered removal proceedings, and was ultimately ordered removed by an immigration

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judge on February 17, 2015. (Id.). Petitioner did not appeal that ruling, and his order of removal
therefore became final on or about February 17, 2015. (Id.).
On or about February 25, 2015, immigration officials first requested that the Embassy of
Sierra Leone issue a travel document for Petitioner so that he could be removed. (Id. at ¶ 7).
Petitioner was thereafter taken to York, Pennsylvania, where he was interviewed by an official
from the Embassy. (Id.) Petitioner asserts in his reply that, during that interview, he told the
Embassy that he had neither a birth certificate nor passport from Sierra Leone. (ECF No. 7 at 12).
Petitioner further asserts that he called the Embassy and was “told by the representative that due
to the complications with his birth certificate and passport, his removal to Sierra Leone is unlikely
in the near/foreseeable future.” (Id.).
On June 18, 2015, however, immigration officials contacted the Embassy again, at which
point the Sierra Leone Embassy confirmed that Petitioner was from Sierra Leone, but that no travel
documents could be issued “until after the Ebola crisis in Sierra Leone has ended.” (Document 1
attached to ECF No. 5 at ¶ 8). Immigration kept in contact with the Embassy, and was told on
October 8, 2015, that Sierra Leone was confident an end to the Ebola crises was coming within
thirty days, and that the Embassy would thereafter issue travel documents for those whose identity
had previously been confirmed, including Petitioner. (Id. at ¶ 9). On November 6, 2015,
immigration officials again met with representatives from the embassy and were informed that the
World Health Organization (WHO) had declared that Sierra Leone was Ebola free, and that the
Ambassador and his staff were working on a repatriation plan to issue travel documents for
individuals awaiting removal whose identity had previously been confirmed but who had not been
removed because of the Ebola crisis. (Id. at ¶ 10). The WHO officially declared the end of the
Ebola outbreak the following day. (Id. at ¶ 11). As the Ebola crisis has ended, and the Embassy

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has confirmed that it intends to start issuing travel documents to those individuals whose identities
have been confirmed as a result, immigration officials expect that a travel document will be issued
for Petitioner in the near future as immigration has a history of regularly removing individuals to
Sierra Leone that was only interrupted during the Ebola outbreak. (Id. at ¶ 12).

II. DISCUSSION
A. Legal Standard
Under 28 U.S.C. § 2241(c), habeas relief may be extended to a prisoner only when he “is
in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2241(c)(3). A federal court has jurisdiction over such a petition if the petitioner is “in custody”
and the custody is allegedly “in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). As Petitioner is
currently detained within this Court’s jurisdiction, by a custodian within the Court’s jurisdiction,
and asserts that his continued detention violates due process, this Court has jurisdiction over his
claims. Spencer v. Lemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Court, 410 U.S.
484, 494-95, 500 (1973); see also Zadvydas v. Davis, 533 U.S. 678, 699 (2001).

B. Analysis
Although Petitioner argues at length that his current detention is unreasonable under Diop
v. ICE/Homeland Sec., 656 F.3d 221, 231-35 (3d Cir. 2011), and Chavez-Alvarez v. Warden York
County Prison, 783 F.3d 469 (3d Cir. 2015), those cases both deal with detention during the period
of time where a final order of removal has not been issued, and the petitioner is subject to detention
under 8 U.S.C. § 1226(c). Here, however, Petitioner did not appeal his order of removal, and thus

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he is subject to a final order of removal and is currently detained pursuant to 8 U.S.C. § 1231(a).
See, e.g., Leslie v. Attorney Gen., 678 F.3d 265, 268-70 (3d Cir. 2012).
As Petitioner is currently confined pursuant to 8 U.S.C. § 1231(a), the reasonableness of
the length of his detention is controlled by the Supreme Court’s ruling in Zadvydas, 533 U.S. at
701. In Zadvydas, the Court observed that the statute requires the Government to detain an alien
throughout the ninety-day removal period following the issuance of a final order of removal. Id.
at 683. The Court also held in that case that removable aliens may be detained beyond the statutory
removal period so long as the alien’s continued detention is “reasonably necessary” to effectuate
the alien’s removal. Id. at 689, 699. The Zadvydas Court further held that detention for a period
of up to six months is presumptively reasonable under § 1231(a). Id. at 701. It is only after that
six month period has passed that an alien may challenge his continued detention under Zadvyas by
showing that there is “no significant likelihood of removal in the reasonably foreseeable future.”
Id. Thus, to be entitled to habeas relief, Petitioner must “‘provide[] good reason to believe that
there is no significant likelihood of removal in the reasonably foreseeable future,’ after which the
Government ‘must respond with evidence sufficient to rebut that showing.’” Alexander v. Att’y
Gen., 495 F. App’x 274, 276 (3d Cir 2012) (quoting Zadvydas, 533 U.S. at 701). “Zadvydas does
not delineate the boundaries of evidentiary sufficiency, but it suggests that an inversely
proportional relationship is at play: the longer an alien is detained, the less he must put forward to
obtain relief.” Id. at 276-77.
Here, Petitioner received his final order of removal in February of 2015, and has therefore
been detained under § 1231(a) for approximately one year, well in excess of the six month
presumptively reasonable period. In support of his assertion that his removal is not reasonably
likely, Petitioner provides only his own unsupported assertion that an unknown representative of

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the Embassy of Sierra Leone told him that his lack of a birth certificate or passport made his
removal “unlikely in the near/foreseeable future” and Petitioner’s own assertion that his family
and the Sierra Leone consulate have continued to tell him that. (ECF No. 1 at 4-5; ECF No. 7 at
12-13). Petitioner provides no documentary evidence in support of this claim, nor has he provided
a sworn statement or affidavit setting forth his factual contentions.
The Government, however, has provided a certification by an immigration official with
personal knowledge who affirms that immigration officials have spoken with the Embassy, that
the Embassy has confirmed that Petitioner is from Sierra Leone, that Petitioner’s removal was only
delayed by the fact that Sierra Leone was effectively quarantined during the Ebola outbreak and
would not issue documents until the outbreak ended in November 2015, that the Embassy has since
stated that they are beginning to clear the backlog of confirmed aliens in need of travel documents
now that the Ebola crisis has ended, and that Petitioner is among those in that backlog for whom
the Embassy is preparing documents. (Document 1 attached to ECF No. 5). Thus, the information
provided by the Government clearly indicates that, now that the Ebola crisis no longer prevents
the issuance of travel documents, there is every expectation that Sierra Leone will shortly issue
travel documents for Petitioner and that Petitioner will shortly thereafter be removed to his native
land. Even if this Court credits Petitioner’s assertion that Sierra Leone at first was hesitant to issue
a document due to his lack of documentation of his birth, that the Embassy has confirmed his
identity and is in the process of providing documents for aliens awaiting removal clearly
contradicts his assertion that his removal is unlikely in the reasonably foreseeable future. As such,
Petitioner has failed to show that his removal is not reasonably foreseeable, and to the extent that
he has attempted to do so, the Government has clearly rebutted his arguments with evidence
indicating that Petitioner’s removal is quite likely in the near future. Petitioner has therefore failed

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to show that his circumstances warrant habeas relief, and his Petition will therefore be denied
without prejudice. See Zadvydas, 533 U.S. at 701; Alexander, 495 F. App’x at 276-77.

III. CONCLUSION
For the reasons stated above, this Court will deny Petitioner’s petition for a writ of habeas
corpus (ECF No. 1) without prejudice. An appropriate order follows.

February 17, 2016

s/ Susan D. Wigenton
Hon. Susan D. Wigenton
United States District Judge

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