SHIFAT v. DEPARTMENT OF HOMELAND SECURITY
OPINION. Signed by Judge Kevin McNulty on 4/18/17. (cm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TAWAKALITU ATINUKE SHIFAT,
Civ. No. 1 7-2368 (KM)
DEPARTMENT OF HOMELAND SECURITY,
KEVIN MCNULTY, U.S.D.J.
The petitioner, Tawakalitu Atinuke Shifat, is an immigration detainee currently lodged at
the Hudson County Correctional Facility in Kearny, New Jersey. Ms. Shifat is proceeding pro se
with a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. Her petition challenges
her immigration detention and also alludes to a denial of medical care. For the following reasons,
the habeas petition will be summarily dismissed without prejudice.
Ms. Shifat is a native of Nigeria. She was placed into immigration detention on
November 2, 2015. On May 5, 2016, an Immigration Judge (“Ii”) ordered Ms. Shifat removed.
The Board of Immigration Appeals (“BIA”) dismissed Ms. Shifat’s appeal of that removal order
on December 9, 2016. Ms. Shifat’s motion to reopen was denied by the BIA on February 24,
2017. According to the petition, Ms. Shifat’s motion for stay of removal remains pending before
the United States Court of Appeals for the Second Circuit.
In April 2017, this Court received Ms. Shifat’s petition for a writ of habeas corpus. Ms.
Shifat asserts that her prolonged immigration detention violates the Constitution. Additionally,
she protests a lack of medical care, alluding to an operation that immigration authorities state
they cannot fund. (See Dkt. No. 1 at p.10)
LEGAL STANDARD: SUA SPONTE DISMISSAL
With respect to screening the petition, 28 U.S.C.
§ 2243 provides in relevant part:
A court, justice or judge entertaining an application for a writ of
habeas corpus shall forthwith award the writ or issue an order
directing the respondent to show cause why the writ should not be
granted, unless it appears from the application that the applicant or
person detained is not entitled thereto.
“[A] district court is authorized to dismiss a [habeas] petition summarily when it plainly appears
from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to
relief in the district court [.]“ Lonchar v. Thomas, 517 U.S. 314, 320 (1996).
A. Immigration Detention
Ms. Shifat is now subject to a final order of removal. See 8 C.F.R.
1241.1(a) (order or
removal by IJ becomes final upon dismissal of appeal by the BIA). Post-removal immigration
detention can become excessive at some point. 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.
123 l(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
123 l(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
(a) Upon dismissal of an appeal by the Board of Immigration
(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.
1241.1. Section 123 1(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
1231 (a)(6) authorizes either continued detention or release on bond:
An alien ordered removed who is inadmissible under section 1982
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
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 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 Zadvydas, 533 U.S. at 701.
Ms. Shifat’s post-removal immigration detention began on December 9, 2016, when the
BIA dismissed her appeal. See 8 C.F.R.
1241.1(a). Thus, her immigration detention is still
within the presumptively reasonable six-month period of post-removal immigration detention set
forth in Zadvydas. Her challenge is therefore premature. Accord Grossett v. JYIuller No. 13—
0364, 2013 WL 6582944, at *3 (D.N.J. Dec. 13, 2013) (noting Zadvydas claim is premature if
filed prior to expiration of six-month presumptively reasonable removal period); Abdou v.
Elwood No. 12—7720, 2013 WL 1405774, at *4 (D.N.J. Apr. 4, 2013) (same). Should the United
States fail to execute the order of removal within a reasonable time, the claim may be reasserted.
My dismissal of her petition is without prejudice to such a later challenge.
B. Medical Care
Ms. Shifat also asserts in her habeas petition that she has been denied adequate medical
care by immigration authorities. To the extent this may have been intended as a separate claim, it
relates to the conditions of her confinement at the Hudson County Correctional Facility. Such a
conditions-of-confinement claim is appropriately brought in a civil rights action under 42 U.S.C.
1983, not as a supplement to a habeas petition under 28 U.S.C.
§ 2241. See
Williamson, 362 F. App’x 263, 266 (3d Cir. 2010); see also Learner v. Fauver, 288 F.3d 532, 542
(3d Cir.2002) (“[W]henever the challenge ultimately attacks the ‘core of habeas validity of
the continued conviction or the fact or length of the sentence—a challenge, however,
denominated and regardless of the relief sought, must be brought by way of a habeas corpus
petition. Conversely, when the challenge is to a condition of confinement, such that a finding in
plaintiffs failure would not alter his sentence or undo his conviction, [a civil rights action] is
Accordingly, I will dismiss Ms. Shifat’s medical care claim. See Brown v. Warden
Lewisburg USP, 601 F. App’x 85, 86 (3d Cir. 2015) (finding district court properly dismissed
habeas petition where petitioner raised claims associated with his conditions of confinement
since they are not cognizable habeas claims). This dismissal is without prejudice to assertion of
such a claim in a properly filed
§ 1983 action.
For the foregoing reasons, the habeas petition is dismissed without prejudice. An
appropriate order will be entered.
DATED: April 18, 2017
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?