ISSIFU v. GREEN

Filing 7

OPINION. Signed by Judge Kevin McNulty on 7/12/17. (cm, )

UNITED STATES DISTRICT COURT
DiSTRICT OF NEW JERSEY

ISSIFU ABDUL MALIK,
Civ. No. 17-0832 (KM)

Petitioner,
V.

OPINION

CHARLES GREEN,
Respondent.

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

INTRODUCTION

The petitioner, Abdul Malik Issifu) is an immigration detainee who was lodged at the
Essex County Correctional Facility when he filed this prose petition for writ of habeas corpus
pursuant to 28 U.S.C.

§ 2241

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Mr. Issifu challenges his current immigration detention. For the

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

BACKGROUND

Mr. Issifu is a native and citizen of Ghana. He appeared at a port of entry between the
United States and Mexico on December 12, 2015 without authorization to enter the United
States. Mr. lssith declared at that time that he was seeking asylum in the United States. He was
placed in immigration detention at that time.

A review of the documents in this case indicate that petitioner’s actual name is Abdul Malik
Issifu. Therefore, the Clerk will be ordered to correct the caption.
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Mr. Issifu has since been transferred to a facility in Alabama. However, this Court retains
jurisdiction over the habeas petition. See Runisfeld v Padilla, 542 U.S. 426, 441 (2004). Thus,
Mr. Issifu’s request to be returned to New Jersey so that this Court can maintain jurisdiction over
this case (see Dkt. No. 6 at p.5) is without merit because this Court retains jurisdiction in this
matter in any event.

On July 25, 2016, the Immigration Judge (“Ii”) ordered Mr. Issifu removed to Ghana.
Mr. Issifu did not appeal that decision to the Board of Immigration Appeals (“BIN’).3
In February, 2017, Mr. Issifu filed this habeas petition. He asserts that the amount of time
that he has spent in immigration detention violates Zath’ydas v Davis, 533 U.S. 678 (2001).
Respondent has filed an opposition to the habeas petition. Mr. Issifu has filed a reply.
III.

DISCUSSION

The parties spend some time discussing the current appropriateness of Mr. Issifu’s pre
removal immigration detention under 8 U.S.C.

§ 1225(b). However, as Mr. Jssifu did not appeal

from the IJ’s order of removal, he is properly considered a post-removal immigration detainee.
See 8 U.S.C.

§ 123 1(a)(1)(B); 8 C.F.R. § 1241.1. Title 8, United Slates Code, Section

123 l(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.

§ 123 1(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.

§ 123 1(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:

It is not clear whether Mr. Issifu intended to waive his right to appeal to the BIA or to
reserve his right to appeal. While waiver of appeal is circled on the IJ’s order of removal, it states
that Mr. Issifu “both” waived and reserved his right to appeal. (See Dkt. No. 4-3 at p.2) Both
cannot be correct, but because I have no basis to choose, I consider both possibilities in
calculating the period of detention.
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(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.
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

§

§

1231 (a)(2). If the alien is not removed during that

1231 (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.

§

1231(a)(6).

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

§

123 l(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

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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. Appx 274, 276-77 (3d Cir. 2012) (citing Zadvydas, 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

§

1231(a)(6). See Zadi’ydas, 533 U.S. at 701.

Mr. Issifu has been in post-removal immigration detention for either ten or eleven
months, depending upon whether he is considered to have waived his right to appeal, or
alternatively simply failed to appeal, the IJ’s order of removal. See 8 C.F.R. 1003.38(b) (deadline
to appeal to BIA is thirty days). Neither ten nor eleven months of post-removal detention
compels federal habeas relief Immigration and Customs Enforcement (“ICE”) states that it was
in contact with the Ghanaian Embassy on March 2, 2017 to address Mr. Issifu’s travel
documents. (See Dkt. No. 4-4 at p.2) ICE states that at that time it gave the Ghanaian Embassy a
list of individuals, including Mr. Issifu, seeking to have them interviewed to effectuate their
removal. (See itt) Furthermore, ICE states that in the fiscal year 2017, there have been seventyseven removals to Ghana. (See Id.) ICE explains that it therefore believes that there is a
significant likelihood that Mr. Issifu will be removed in the reasonably foreseeable future. (See
Id.)
In light of the Deportation Officer’s representations to this Court, Mr. Issifu has not yet
shown that his post-removal immigration detention for either ten or eleven months violates
Zadvydas. Other courts have determined that similar periods of post-removal immigration
detention do not yet merit granting habeas relief under Zadvydas. See, e.g., Qrjakhi v. Green, No.
16-8651, 2017 WL 1362857, at *2 (D.N.J. Apr. 10, 2017) (slightly more than eleven months);
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? ofHomeland Sec.. No. 12-1869. 2013 WL 5570822, at *1 (M.D.

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Pa. Oct. 9,2013) (eleven months); Moulton

1’.

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).
I am mindful that Mr. Issift?s post-removal immigration detention will soon approach
one year, and that the longer an alien is detained, the less proof he must put forward to obtain
relief SecAlexander, 495 F. App’x 276-77 (citing Zadvydas, 533 U.S. at 701) While ICE states
that seventy-seven people have been removed to Ghana in this fiscal year, I am also mindful of
the amount of time that it has taken ICE to effectuate Mr. Issifu’s removal. If, when forty-five
days has run from the date of this opinion and order, Mr. Issifu is still in immigration detention
and has not yet been removed, I may well feel compelled to order his release absent persuasive
reasons to the contrary. AccordAliaga. 2014 WL 2002428, at *3• That should give the Ghanaian
Embassy enough time to issue the necessary travel documents, especially considering that the
matter of Mr. Issifu’s travel documents has been pending before that Embassy since at least
March 2,2017.
When that 45 day period has run, in any potential motion to reopen, Mr. Issifu may
submit further evidence to show that his removal will not occur in the reasonably foreseeable
future. Furthermore, even if Mr. Issifu submits no further evidence in forty-five days, the
persuasiveness of respondent’s evidence will diminish as time passes.

IV.

CONCLUSION

For the foregoing reasons, the habeas petition will be dismissed without prejudice to a
reapplication in forty-five days. An appropriate order will be entered.
Dated: July 12, 2017

KEVIN MCNULtY
United States District J dge

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