DIALLO v. HOLDER et al
Filing
13
OPINION filed. Signed by Judge Joel A. Pisano on 7/25/2011. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MAMADOU DIALLO,
:
Civil Action No. 10-4656 (JAP)
Petitioner,
:
v.
:
ERIC HOLDER, et al.,
Respondents.
OPINION
:
:
APPEARANCES:
Petitioner pro se
Mamadou Diallo
MCCI
1 Waterworks Road
Freehold, NJ 07728
Counsel for Respondents
Theodore William Atkinson
U.S. Dept. of Justice
Off. of Immigration Litigation
P.O. Box 868
Ben Franklin Station
Washington, DC 20044
PISANO, District Judge
Petitioner Mamadou Diallo, an alien detainee presently
confined at Monmouth County Correctional Institution in
Freeholde, New Jersey, has submitted a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241.1
1
The named
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 ... .
Respondents are Attorney General Eric Holder, Homeland Security
Secretary Janet Napolitano, Field Office Director Christopher
Shanahan, and Warden William Fraser.
Because it appears from a review of the Petition that
Petitioner is not entitled to relief, the Petition will be
dismissed.
See 28 U.S.C. § 2243.
I.
BACKGROUND
Petitioner Mamadou Diallo is a citizen and national of
Guinea who entered the United States on February 17, 2004, using
a Guinean passport under the name Mohamed Camara, but without a
valid entry document.
On June 17, 2004, Petitioner filed an application for asylum
and for withholding of removal which was referred to an
immigration judge.
Thereafter, Petitioner was served with a
Notice to Appear charging him under the Immigration and
Nationality Act Section 237(a)(1)(A) for not having a valid entry
document.
At his immigration hearing, Petitioner testified that
his parents still resided in Guinea, but that his brother Alfa
Omar Diallo had immigrated to the United States.
Petitioner
testified that he had posed as the son of a family friend, Mr.
Camara, to obtain a passport under the name Mohamed Camara.
In
support of his application for asylum, Petitioner presented the
asylum application of his brother, Alfa Omar Diallo, which was
somewhat inconsistent with Petitioner’s testimony.
2
On December 15, 2005, the immigration judge denied
Petitioner’s Applications for asylum and withholding of removal,
found him removable, and ordered him removed to Guinea.
Petitioner successfully appealed to the Board of Immigration
Appeals, which remanded the case back to an immigration judge for
further proceedings.
On May 7, 2009, Petitioner and his brother both provided
oral testimony.
Nevertheless, the immigration judge once again
ordered Petitioner removed to Guinea.
BIA dismissed Petitioner’s appeal.
On September 17, 2009, the
Petitioner did not further
appeal order of removal, which became final thirty days later, on
October 17, 2009.
On October 15, 2009, the Consulate General of Guinea
interviewed Petitioner in connection with efforts to remove
Petitioner.
According to Respondents, in this interview,
Petitioner stated that he had purchased his birth certificate
under the name Mamadou Diallo, which he admitted was not his
birth certificate.
The Consulate General analyzed the birth
certificate and determined that it was not authentic.
The
Consulate General also analyzed the passport bearing the name
Mohamed Camara, determined that it was authentic, and determined
that Petitioner was Mohamed Camara.
the paperwork to renew
Petitioner was provided with
his passport, under the name Mohamed
3
Camara; Petitioner, however, signed the passport renewal
application with his assumed name Mamadou Diallo.
On November 4, 2009, the Consulate General of Guinea again
interviewed Petitioner, because of the discrepancy with the
names, and Petitioner asserted that his true identity is Mamadou
Diallo.
Despite the multiple requests (allegedly 15) of
immigration authorities, over a period of months, that Petitioner
either complete the passport renewal documentation under the name
the Consulate General considers authentic, Mohamed Camara, or
that he provide authentic documentation to substantiate his
identity as Mamadou Diallo, Petitioner has failed to satisfy
either option.2
The Bureau of Immigration and Custody Enforcement has
conducted for Post-Removal-Order custody reviews, on December 10,
2009, March 26, 2010, June 25, 2010, and September 23, 2010, at
each of which immigration officials advised Petitioner that he
was failing to cooperate in obtaining the necessary travel
documents.
2
With respect to the interviews with the Consulate General
of Guinea, and the Consulate General’s conclusions about the
authenticity of Petitioner’s documentation and of Petitioner’s
identity, the Court has only the representations of Respondents’
counsel in the brief. Respondents have not provided any records
of those interviews, correspondence with staff at the Consulate
General explaining the basis for their conclusions, or any case
notes. This Court is troubled by the Respondents’ failure to
provide any such documentary evidence, which would be highly
relevant. Because Petitioner does not dispute Respondents’
representations, however, this Court accepts them.
4
Here, Petitioner seeks a writ of habeas corpus, asserting
that his prolonged detention in lieu of removal violates his
rights to due process and under 8 U.S.C. § 1231(a)(6), because
his removal is not reasonably foreseeable in light of te
Consulate General’s refusal to issue travel documents in
Petitioner’s name.
Petitioner names as Respondents Attorney
General Eric Holder, Homeland Security Secretary Janet
Napolitano, ICE Field Officer Director Christopher Shanahan, and
Warden William Fraser.
Respondents have responded with a motion to dismiss the
Petition as against all Respondents except William Fraser, as
they are not Petitioner’s physical custodians, and with a request
to deny the Petition on the grounds that Petitioner has refused
to cooperate with efforts to remove him.
responded.
This matter is now ready for decision.
II.
A.
Petitioner has not
ANALYSIS
The Proper Respondent
Respondents urge this Court to dismiss Eric Holder, Janet
Napolitano and Christopher Shanahan from this action as improper
respondents.
Among other things, 28 U.S.C. § 2242 requires the petition
for a writ of habeas corpus to allege “the name of the person who
has custody over [the petitioner].”
See also 28 U.S.C. § 2243
(“The writ, or order to show cause shall be directed to the
5
person having custody of the person detained.”).
“[T]hese
provisions contemplate a proceeding against some person who has
the immediate custody of the party detained, with the power to
produce the body of such party before the court or judge, that he
may be liberated if no sufficient reason is shown to the
contrary.”
Wales v. Whitney, 114 U.S. 5674, 574 (1885) (emphasis
added).
In accord with the statutory language and Wales’
immediate custodian rule, longstanding practice
confirms that in habeas challenges to present physical
confinement - “core challenges” - the default rule is
that the proper respondent is the warden of the
facility where the prisoner is being held, not the
Attorney General or some other remote supervisory
official.
Rumsfeld v. Padilla, 542 U.S. 426, 434-436 (2004) (citations
omitted).3
In the context of alien detainees, the Court of Appeals for
the Third Circuit has held,
It is the warden of the prison or the facility
where the detainee is held that is considered the
custodian for purposes of a habeas action. This is
because it is the warden that has day-to-day control
over the prisoner and who can produce the actual body.
That the district director has the power to release the
detainees does not alter our conclusion. Otherwise,
the Attorney General of the United States could be
3
In Padilla, the Supreme Court also noted (1) the open
question whether the Attorney General is a proper respondent to a
habeas petition filed by an alien detained pending deportation
and (2) the implicit exception to the immediate custodian rule in
the military context where an American citizen is detained
outside the territorial jurisdiction of any district court. 542
U.S. at 435-36, n.8, 9.
6
considered the custodian of every alien and prisoner in
custody because ultimately she controls the district
directors and the prisons.
Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994).
See also
Kholyavskiy v. Achim, 443 F.3d 946 (7th Cir. 2006) (citing Yi,
and reaching same result, after Padilla).
Thus, under the circumstances of this case, William Fraser,
the warden of the facility where the petitioner is held is the
proper respondent.
All other named Respondents will be
dismissed.
B.
Petitioner’s Claim for Relief
Petitioner contends that his prolonged detention is unlawful
and a violation of his rights to procedural and substantive due
process.
Post-removal-order detention is governed by 8 U.S.C.
§ 1231(a).
Section 1231(a)(1) requires the Attorney General to
attempt to effectuate removal within a 90-day “removal period.”
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.
8 U.S.C. § 1231(a)(1)(B).
7
Section 1231(a)(6) permits continued detention if removal is
not effected within 90 days.
However, interpreting the statute
to avoid any question of a due process violation, the Supreme
Court has held that such post-removal-order detention is subject
to a temporal reasonableness standard.
Specifically, once a
presumptively-reasonable six-month period of post-removal-order
detention has passed, a detained alien must be released if he can
establish that his removal is not reasonably foreseeable.
See
Zadvydas v. Davis, 533 U.S. 678 (2001); Clark v. Martinez, 543
U.S. 371 (2005).
Thus, the alien bears the initial burden of establishing
that there is "good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable
future," after which the government must come forward with
evidence to rebut that showing.
Zadvydas, 533 U.S. at 699-701.
However, “[t]he removal period shall be extended beyond a
period of 90 days and the alien may remain in detention during
such extended period if the alien fails or refuses to make timely
application in good faith for travel or other documents necessary
to the alien's departure or conspires or acts to prevent the
alien's removal subject to an order of removal.” 8 U.S.C.
§ 1231(a)(1)(C).
Federal courts have recognized that “Zadvydas
does not save an alien who fails to provide requested
documentation to effectuate his removal.
8
The reason is self-
evident: the detainee cannot convincingly argue that there is no
significant likelihood of removal in the reasonably foreseeable
future if the detainee controls the clock.”
Pelich v. INS, 329
F.3d 1057, 1060 (9th Cir. 2003) (cited with approval in U.S. ex
rel. Kovalev v. Ashcroft, 71 Fed.Appx. 919, 924 (3d Cir. 2003).
Respondents assert in their brief that Petitioner has failed
to cooperate, and that his continued detention is therefore
lawful.
Specifically, Respondents contend that Petitioner has
asserted, at different times, that he is Mamadou Diallo or
Mohamed Camara.
Petitioner admits that he refuses to complete
passport renewal paperwork under the name that the Consulate
General of Guinea has determined is Petitioner’s correct
identity: Mohamed Camara.
Unquestionably, in a situation such as this where Petitioner
admits that he has asserted two different identities and has
bought fraudulent identification documentation, admits that he
has four living relatives in New York who might be able to assist
in providing identifying information, and admits that he has two
living parents in Guinea who might be able to assist in providing
identifying information, he has failed to cooperate in his
removal and has failed, in this Court, to establish that there is
no likelihood of his removal in the reasonably foreseeable
future.
Petitioner has made no effort, whatsoever, to explain
why his six living relatives in Guinea and the United States
9
could not assist him in establishing his identity so that he
could obtain removal papers.
He has made no effort to provide
this Court, the Consulate General of Guinea, or the Bureau of
Immigration and Customs Enforcement, with evidence that his true
identity is Mamadou Diallo.
There is no statutory or due process
violation in his continued detention as of this time.
However, as Respondents acknowledge, repatriation is a
shared responsibility of the government and the alien.
Here,
Petitioner has admitted having at least six living relatives in
the United States and Guinea, yet the record is devoid of any
effort to obtain information from any of them regarding
Petitioner’s true identity.
Respondents have advised this Court
that the government of Guinea has made certain determinations
about Petitioner’s true identity.
Respondents have not
explained, however, the rationale underlying those decisions or
why they should be persuasive to the Bureau of Immigration
Enforcement or to this Court.
With respect to the question of
Petitioner’s true identity, and the bearing of that issue on the
questions of Petitioner’s cooperation in his removal and of the
legality of Petitioner’s detention, this Court is not bound to
find that such vague representations are fact.
Immigration
officials bear some responsibility for themselves attempting to
determine Petitioner’s true identity, for articulating the
specific information they require from Petitioner in connection
10
with that determination, for focusing their efforts on obtaining
appropriate documentation and other information in order to
expedite the removal or establish lack of cooperation, and for
assisting Petitioner in acquiring that information.
This Court shall consider a renewed application for relief
if, after full cooperation from Petitioner in meeting the
government’s clearly articulated requirements, the government
remains unable to effectuate Petitioner’s removal.
III.
CONCLUSION
For the reasons set forth above, the Petition will be
dismissed as against Respondents Eric Holder, Janet Napolitano,
and Christopher Shanahan and will be denied in all other
respects.
An appropriate order follows.
/s/JOEL A. PISANO
JOEL A. PISANO
United States District Judge
Dated: July 25, 2011
11
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?