ORIAKHI v. JOHNSON et al

Filing 20

OPINION. Signed by Judge Kevin McNulty on 4/10/17. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FELIX ORIAKHI,
Civ. No. 16-8651 (1(M)

Petitioner,
V.

OPINION

CHARLES GREEN,
Respondent.

KEVIN MCNULTY, U.S.D.J.
I.

INTRODUCTION

The petitioner, Felix Oriakhi, is an immigration detainee who is currently lodged at the
Hudson County Correctional Facility in Kearny, New Jersey. He is proceeding pro se with a
petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2241 challenging his continued

immigration detention. For the following reasons, the habeas petition will be denied without
prejudice.
II.

BACKGROUND

Mr. Oriakhi is a native and citizen of Nigeria. He entered the United States in 1980.
Thereafter, Mr. Oriakhi was convicted in Maryland of conspiracy to distribute heroin, and
received a 360-month prison sentence. On March 13, 2003, as Mr. Oriakhi was serving his
criminal sentence, a final order of removal was entered against him in immigration proceedings.
Upon his release from custody on his criminal sentence, on May 4, 2016, Mr. Oriakhi was placed
into immigration detention.
In November 2016, Mr. Oriakhi filed this habeas petition. Mr. Oriakhi argues that the
amount of time he has spent in immigration detention is excessive under the standards of

Zadvydas v. Davis, 533 U.S. 678 (2001). Respondent has filed a response in opposition to the
habeas petition. Thereafter, Mr. Oriakhi filed a reply in support of his habeas petition, as well as
motion to subpoena medical records. The matter is fully briefed and ripe for decision.
III.

DISCUSSION

Title 8 of the United States Code Section 1231 (a)( 1 )(A) states that, “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”).” Id,

§

1231 (a)(1 )(A). The 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.
Id.

§

1231 (a)( 1 )(B). Federal regulations provide that:
An order of removal made by the immigration judge at the
conclusion of the proceedings under section 240 of the Act shall
become final:
(a) Upon dismissal of an appeal by the Board of Immigration
Appeals;
(b) Upon waiver of appeal by the respondent;
(c) Upon expiration of the time allotted for an appeal if the
respondent does not file an appeal within that time;
(d) If certified to the Board or Attorney General, upon the date of
the subsequent decision ordering removal; or
(e) If an immigration judge issues an alternate order of removal in
connection with a grant of voluntary departure, upon overstay of
the voluntary departure period, or upon the failure to post a
required voluntary department bond within 5 business days. If the
respondent has filed a timely appeal with the Board, the order shall
become final upon an order of removal by the Board or the
Attorney General, or upon overstay of the voluntary departure
period granted or reinstated by the Board or the Attorney General.

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8 C.F.R.

§

1241 .1. Section 1231 (a)(2) requires that the alien be detained during the ninety-day

post-removal order period. See 8 U.S.C.
ninety-day period, then

§

§

123 1(a)(2). If the alien is not removed during that

123 1(a)(6) authorizes either continued detention or release on bond:

An alien ordered removed who is inadmissible under section 1182
of this title, 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 l(a)(6).

In Zadvydas v. Davis, 533 U.S. 678 (2001), the United States Supreme Court held that

§

1231 (a)(6) “limits an alien’s post-removal-period detention to a period reasonably necessary to
bring about that alien’s removal from the United States. It does not permit indefinite detention.”
533 U.S. at 689. To state a habeas claim under

§ 2241, the petitioner must provide facts showing

good reason to believe that there is no reasonable likelihood of his actual removal in the
reasonably foreseeable future. See 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’ Alexander
v. Attorney Gen. United States, 495 F. App’x 274, 276-77 (3d Cir. 2012) (citing Zathydas, 533
U.S. at 701). As a rule of thumb, the Supreme Court stated that six months is a presumptively
reasonable period of post-removal detention under

§

123 1(a)(6). See Zadvydas, 533 U.S. at 701.

Mr. Oriakhi has been in post-removal immigration detention for over eleven months.
That period of time in and of itself does not compel federal habeas relief. Immigration and
Customs Enforcement (“ICE”) states that in September 2016, it contacted the Nigerian Embassy
seeking travel documents necessary for the removal of seventeen persons, including Mr. Oriakhi.

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(See Dkt. No. 12-1 at p.3) Since that time, the Nigerian Embassy has issued travel documents for
two of those seventeen individuals, 2016. (See Id.) ICE followed up regarding the remaining
cases, and received answers of “status pending” or “interviews to be conducted.” (See Id.) ICE
explains that it is continuing to work with the Nigerian Embassy to secure travel documents and
expects Nigeria to “issue [Mr. Oriakhi] a travel document in the reasonably foreseeable future.”
(See id.)
In light of these representations, I cannot find that Mr. Oriakhi’s post-removal
immigration detention for slightly more than eleven months violates Zadvydas. Mr. Oriakhi has
not produced evidence that there is no reasonable likelihood of his actual removal in the
reasonably foreseeable future (for example, evidence showing that Nigeria has declined to accept
deportees). Other courts have determined that similar periods of post-removal immigration
detention do not yet merit granting habeas relief under Zadvydas, at least where, as here,
proceedings are underway and it appears that they are being pursued in good faith. See, e.g.,
Aliaga v. Hendricks, No. 14-0633, 2014 WL 2002428, at *3 (D.N.J. May 15, 2014) (ten-and-one
half months); Pierre v. Dep’t of Homeland Sec., No. 12-1869, 2013 WL 5570822, at *1 (M.D.
Pa. Oct. 9,2013) (eleven months); Moulton v. Sabol, No. 12-0922, 2012 WL 6012133, at *8
(M.D. Pa. Aug. 6, 2012) (noting that petitioner is not automatically entitled to be released despite
being in post-removal order detention for ten months where he failed to provide any evidence
that Liberia denied him as a citizen or that Liberia will refuse to issue the appropriate travel
documentation for him in the reasonably foreseeable future), report and recommendation
adopted by 2012 WL 6012799 (M.D. Pa. Dec. 3, 2012).
Mr. Oriakhi asserts that his medical conditions, which include severe glaucoma and high
blood pressure, will preclude or hamper the ability of the United States to remove him. He

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suggests that Nigeria will not accept him and, in his reply brief, cites Ra/igah v. Conway, 268 F.
Supp. 2d 159 (E.D.N.Y. 2003).
In Rajigah, the petitioner was facing removal to Guyana. However, the Guyanese
Ambassador told ICE that the Minister of Home Affairs had advised him that Mr. Rajigah
suffered from a particular eye disease for which there was no adequate treatment available in
Guyana. Accordingly, it was the view of the Minister of Home Affairs view that a travel
document should not be issued to Mr. Rajigah. See Id. at 16 1-62. Here, by contrast, Mr. Oriakhi
provides no evidence that Nigeria has expressed the view that he will not be issued a travel
document.
Mr. Oriakhi also alludes to an incident from June, 2016, shortly after he was placed into
immigration detention. He was then flown to Florida for the purpose being placed on a chartered
flight to Nigeria, but was not ultimately placed on the flight. At that time, however, there had not
yet been any communication between ICE and the Nigerian Embassy regarding issuance of a
travel document. I therefore do not interpret this incident as evidence that such a travel document
will not be forthcoming.
I am mindful that Mr. Oriakhi’s immigration detention is quickly approaching one year,
and that the longer an alien is detained, the less proof he must put forward to obtain relief. See
Alexander, 495 F. App’x 276-77 (citing Zadvydas, 533 U.S. at 701). I am particularly troubled
by the apparently slow pace at which Nigeria is issuing travel documents for immigration
detainees: at present, just two of seventeen requested in September 2016. (See Dkt. No. 12-1 at
p.3)
Accordingly, if I do not see some evidence that such a travel document is forthcoming
within forty-five days, Mr. Oriakhi may by filing a simple motion obtain reopening of this case

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________________________

and reconsideration of this decision. AccordAliaga, 2014 WL 2002428, at *3 Any such motion
may include further evidence to show that removal will not occur in the reasonably foreseeable
future. I do not require such additional evidence, however; ICE’s showing thus far has been
sufficient, but minimal, and its persuasiveness will necessarily diminish as time passes.
IV.

MOTION TO SUBPOENA MEDICAL RECORDS

Mr. Oriahki has also filed a motion to subpoena medical records. (See Dkt. No. 18) He
requests that his medical records from an eye exam conducted on February 27, 2017 be sent to
this Court. This Court need not analyze this motion on the merits. As indicated above, I accepted
for purposes of argument that Mr. Oriakhi has an eye condition, but nevertheless found that he is
not entitled to habeas relief at this time. The motion to subpoena medical records will be denied
as moot.
V.

CONCLUSION

For the foregoing reasons, the habeas petition will be denied without prejudice to a
reapplication in forty-five days. Mr. Oriakhi’s motion to subpoena medical records will be
denied. An appropriate order will be entered.

DATED: April 10, 2017
KEVIN MCNULTY
United States District Judge

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