Mohamed v. Holder et al

Filing 7

-CLERK TO FOLLOW UP---DECISION AND ORDER denying the petition and dismissing the case. This dismissal is without prejudice to file another petition should it subsequently appear that the presumptively reasonable period of post-removal-order detentio n has elapsed, and that removal is no longer reasonably foreseeable. Leave to appeal as a poor person is denied. The Clerk is directed to enter judgment in favor of respondent and to close this case. Signed by Hon. John T. Curtin on 6/5/2013. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MOHAMID MOHAMED, A042-162-296,
Petitioner,
-v-

13-CV-185-JTC

ERIC H. HOLDER, Attorney General of the
United States;
MICHAEL PHILIPS, Field Office Director for
Detention and Removal, Buffalo Field Office,
Bureau of Immigration and Customs Enforcement;
Department of Homeland Security; and
TODD TRYON, Facility Director, Buffalo
Federal Detention Facility,
Respondents.

INTRODUCTION
Petitioner Mohamid Mohamed, an alien under a final order of removal from the
United States, has filed this pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 seeking release from detention in the custody of the United States
Department of Homeland Security, Immigration and Customs Enforcement (collectively,
“DHS”), pending the execution of a final immigration order of removal issued against him.
Item 1. As directed by this court’s order entered March 4, 2013 (Item 2), respondent1 has

1

The only proper respondent in this proceeding is Todd Tryon, Assistant Field Office Director,
Immigration and Customs Enforcement, Buffalo, New York Office, and Director of the Buffalo Federal
Detention Facility, as he is “the person who has custody over [the petitioner].” 28 U.S.C. § 2242; see also
§ 2243 (“The writ, or order to show cause shall be directed to the person having custody of the person
detained.”); Rumsfeld v. Padilla, 542 U.S. 426, 434–35 (2004).

submitted an answer and return (Item 4), along with an accompanying memorandum of law
(Item 5) in opposition to the petition, and petitioner has submitted a sworn declaration in
reply (Item 6).
For the reasons that follow, the petition is denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner, a native and citizen of Guyana, entered the United States at New York,
New York on February 10, 1990. See Item 4-1 (Declaration of DHS Deportation Officer
Juanita Payan), ¶ 5. DHS records reflect that petitioner was convicted of the following
criminal offenses while present in the United States:
On January 6, 1998, petitioner was convicted in the Queens County, New York
Criminal Court, of driving while ability impaired by the consumption of alcohol. He was
granted a conditional discharge, fined $300, and his driver’s license was suspended for 90
days. Id. at ¶ 6(a).
On December 20, 2001, petitioner was convicted in the Queens County, New York
Criminal Court, for operating a motor vehicle with .10 of 1% alcohol - first offense. He was
granted a conditional discharge, fined $750 and his driver’s license was revoked. Id at
¶ 6(b).
On September 7, 2007, petitioner was convicted in the New York State Supreme
Court, Kings County, of Operating a Motor Vehicle .08 of 1% alcohol or more – prior
conviction designated offense within 10 years. Id at ¶ 6(c).
On October 20, 2008, petitioner was convicted in the Kings County, New York
Criminal Court, of attempted criminal contempt in the 2nd degree, in violation of New York
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State Penal Law Section 110-215.50. He was sentenced to 90 days imprisonment and a
5-year order of protection was issued. Petitioner subsequently filed a motion to vacate the
judgment of conviction pursuant to New York State Criminal Procedure Law Section
440.10(h). Id at ¶ 6(d). This motion was denied by the Criminal Court, Kings County, New
York, by a Decision and Order dated February 28, 2013. See Item 4-2 (Exh. A to Payan
Decl.), pp. 39-47.
On December 23, 2010, upon his release from the New York State Department of
Corrections and Community Supervision (“NYSDOCCS”), petitioner was placed into DHS
custody and served with a Notice to Appear (“NTA”) for removal proceedings before an
immigration judge. Item 4-1, ¶ 7. The NTA charged petitioner with being removable from
the United States pursuant to Immigration and Nationality Act (“INA”) § 237(a)(2)(E)(ii), 8
U.S.C. § 1227(a)(2)(E)(ii), as an alien who at any time after entry has been enjoined under
a protection order and has been determined to have engaged in conduct in violation of that
order that involves protection against credible threats of violence, repeated harassment,
or bodily injury to the person or persons from whom the protection was issued. See Item
4-2, pp. 25-27.
On January 5, 2011, petitioner was transferred from DHS custody to the custody of
NYSDOCCS pursuant to a Writ of Habeas Corpus Ad Prosequendum pending the
disposition of several state criminal charges. Item 4-1, ¶ 8.
On February 10, 2011, petitioner was convicted in the New York State Supreme
Court, Queens County, upon verdict after a jury trial, of two counts of criminal mischief in
the 3rd degree; assault in the 3rd degree; criminal contempt in the 1st degree; and criminal
possession of a weapon in the 4th degree. Item 4-2, p. 5. He was sentenced to a term
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of imprisonment of 2 to 4 years. Item 4-1, ¶ 6(e). His appeal from this conviction was
denied by the Appellate Division, Second Department, by Decision and Order dated March
6, 2013. People v. Mohamed, 960 N.Y.S.2d 319 (App. Div. 2d Dep’t 2013).
On May 9, 2012, while petitioner was still in NYSDOCCS’ custody, Immigration
Judge Roger F. Sagerman issued a detailed decision denying petitioner’s request for
cancellation of removal and ordering him removed from the United States to Guyana based
upon the charge in the NTA. Item 4-2, pp. 16-24. Petitioner appealed this decision to the
Board of Immigration Appeals (“BIA”), and on August 13, 2012, the BIA dismissed the
appeal. Id. at 5, 12-15.
Meanwhile, on June 19, 2012, upon release from NYSDOCCS’ custody, and
petitioner was returned to the custody of DHS pending execution of the final order of
removal. Item 4-1, ¶¶ 11, 12; see 8 C.F.R. § 1241.1(b) (order of removal becomes final
upon BIA’s dismissal of appeal).
On August 15, 2012 (immediately following the BIA’s ruling), DHS sent a
presentation packet to the Embassy of Guyana (“Embassy”) in Washington, D.C.,
requesting that they issue travel documents to effectuate petitioner’s removal. Id at ¶ 13.
On August 24, 2012, DHS served petitioner with a formal Warning for Failure to Depart
(Form I-229(a)), with instructions for required action within 30 days to assist in the
procurement of the travel documents. Id at ¶ 14. The form also advised petitioner of
penalties under INA § 243 for conniving or conspiring to prevent or hamper his departure
from the United States, and also advised him that pursuant to INA § 241(a)(1)(C), failure
to comply or provide sufficient evidence of his inability to comply may result in the

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extension of the removal period and subject him to further detention. Id. DHS also made
several attempts during August and September 2012 to contact Embassy officials
regarding the request for travel documents for petitioner. Id. at ¶ 16.
On September 7, 2012, petitioner filed in the United States Court of Appeals for the
Second Circuit a petition for review of the BIA’s August 13, 2012 order, accompanied by
a request for a stay of removal. See Item 4-2, pp. 33-35 (Docket Sheet, Mohamed v.
Holder, 2d Cir. Docket No. 12-3550). On March 20, 2013, the Second Circuit denied
petitioner’s motion for stay of removal and dismissed the petition for review. Id. at 36-37.
On November 9, 2012, petitioner was served with a written notice of decision from
the Buffalo Field Office of DHS’ Enforcement and Removal Operations stating that DHS
had conducted a review of petitioner’s custody status and had decided to continue his
detention, based upon the totality of available information which indicated that petitioner
would be a threat to the community and a flight risk if he were to be released from custody.
Item 4-2, pp. 4-7. An additional review of petitioner’s custody status was conducted by
DHS Headquarters Custody Management Unit (“HQCMU”), including an in-person
interview of petitioner by a panel was convened on January 31, 2013, at the Buffalo
Federal Detention Facility in Batavia, New York. Item 4-1, ¶ 19. On February 14, 2013,
petitioner was served with written notice that DHS had again determined to continue his
detention in DHS custody. Item 4-2, pp. 2-3.
Petitioner filed this action on February 21, 2013, seeking habeas corpus relief
pursuant to 28 U.S.C. § 2241 on the ground that his continued detention in post-removalorder custody is unlawful since it has exceeded the presumptively reasonable six-month
period established under the due process standards set forth by the United States
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Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001). Upon full consideration of the
matters set forth in the submissions on file, and for the reasons that follow, the petition is
denied.

DISCUSSION
Petitioner challenges his continued detention by way of habeas corpus review under
28 U.S.C. § 2241, which “authorizes a district court to grant a writ of habeas corpus
whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of the
United States.’ ” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C.
§ 2241(c)(3)); see also Zadvydas, 533 U.S. at 687 (petition under § 2241 is the basic
method for statutory and constitutional challenges to detention following order of removal).
Matters pertaining to the detention of aliens pending the completion of immigration
removal proceedings and pending removal following the entry of a final order of removal
are governed by two separate provisions of the INA–respectively, INA § 236, which
authorizes the arrest and detention of an alien on warrant pending a decision on whether
the alien is to be removed from the United States, and INA § 241, which authorizes
detention of aliens after the issuance of a final removal order. In this case, petitioner’s
detention at the time he filed his habeas petition was pursuant to INA § 241(a), which
requires the Attorney General to accomplish an alien’s removal from the United States
within a period of ninety days (the “removal period”), commencing on the latest of the
following dates:
(i) The date the order of removal becomes administratively
final.

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(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).
Detention during the ninety-day removal period is mandatory. See INA § 241(a)(2)
(“During the removal period, the Attorney General shall detain the alien.”). The statute also
authorizes the Attorney General to continue detention of certain criminal aliens–i.e., aliens
ordered removed due to conviction of an enumerated crime–beyond the expiration of the
ninety-day removal period. See INA § 241(a)(6).2
In Zadvydas, the Supreme Court was presented with the challenge of reconciling
this apparent authorization of indefinite detention with the Fifth Amendment’s prohibition
against depriving a person of their liberty without due process. The Court determined that
INA § 241(a) authorizes detention after entry of an administratively final order of
deportation or removal for a period that is “reasonably necessary” to accomplish the alien’s
removal from the United States. Zadvydas, 533 U.S. at 699-700. Recognizing the
practical necessity of setting a “presumptively reasonable” time within which to secure

2

INA § 241(a)(6) provides in full as follows:

An alien ordered removed who is inadmissible under section 1182 of this title, removable
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).

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removal, the court adopted a period of six months “for the sake of uniform administration
in the federal courts ….” Id. at 701.
After this 6-month period, once the alien provides good reason to believe that
there is no significant likelihood of removal in the reasonably foreseeable
future, the Government must respond with evidence sufficient to rebut that
showing. And for detention to remain reasonable, as the period of prior
postremoval confinement grows, what counts as the “reasonably foreseeable
future” conversely would have to shrink. This 6-month presumption, of
course, does not mean that every alien not removed must be released after
six months. To the contrary, an alien may be held in confinement until it has
been determined that there is no significant likelihood of removal in the
reasonably foreseeable future.
Id.
To comply with the Supreme Court’s ruling in Zadvydas, the Attorney General has
promulgated regulations providing for review of the custody status of aliens who have been
detained for more than six months after the issuance of a final order of removal. Under
these regulations, a detainee who has been in post-removal-order custody for more than
six months may submit a written request for release to DHS Headquarters Post-order
Detention Unit (“HQPDU”) setting forth “the basis for the alien’s belief that there is no
significant likelihood that the alien will be removed in the reasonably foreseeable future to
the country to which the alien was ordered removed and there is no third country willing to
accept the alien.” 8 C.F.R. § 241.13(d)(1). The written request must include “information
sufficient to establish his or her compliance with the obligation to effect his or her removal
and to cooperate in the process of obtaining necessary travel documents.” 8 C.F.R.
§ 241.13(d)(2).
In reviewing the request for release, the agency is required to consider “all the facts
of the case including, but not limited to,” the following:
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[T]he history of the alien's efforts to comply with the order of removal, the
history of the Service's efforts to remove aliens to the country in question or
to third countries, including the ongoing nature of the Service's efforts to
remove this alien and the alien's assistance with those efforts, the
reasonably foreseeable results of those efforts, and the views of the
Department of State regarding the prospects for removal of aliens to the
country or countries in question. Where the Service is continuing its efforts
to remove the alien, there is no presumptive period of time within which the
alien's removal must be accomplished, but the prospects for the timeliness
of removal must be reasonable under the circumstances.
8 C.F.R. § 241.13(f).
If the agency finds that the alien has met the burden of demonstrating good reason
to believe there is no significant likelihood of removal in the reasonably foreseeable future,
and that there are no special circumstances justifying continued detention, then it must
order the detainee released. 8 C.F.R. § 241.13(g)(1). However, the agency may impose
certain conditions of release on the alien, such as requiring a bond, attendance in a
rehabilitative program, or submission to a medical or psychiatric examination. See 8
C.F.R. §§ 241.5(b), 241.13(h)(1); see also Zadvydas, 533 U.S. at 695 (“[W]e nowhere deny
the right of Congress to remove aliens, to subject them to supervision with conditions when
released from detention, or to incarcerate them where appropriate for violations of those
conditions.”).
As set forth above, in this case petitioner was received into DHS custody on June
19, 2012, upon his release from NYSDOCCS’ custody, for detention pending completion
of immigration removal proceedings as authorized by INA § 236.3 See Item 4-1, ¶ 11. This

3

The present petition does not challenge detention under INA § 236 during the period prior to the
final order of removal. See , e.g., Persaud v. Holder, 2011 WL 5326465, at *2 (W.D.N.Y. Nov. 3, 2011)
(detention pursuant to INA § 236 during period prior to pre-final order of removal did not violate due
process; citing Demore v. Kim, 538 U.S. 510, 531 (2003)).

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detention continued until August 13, 2012, when the Immigration Judge’s order of removal
became final upon the BIA’s dismissal of petitioner’s appeal. Id. at ¶ 12; see 8 C.F.R.
§ 1241.1(b). After the order of removal became final, petitioner’s detention was authorized
by INA § 241(a), and the 90-day removal period began. Id. As discussed, DHS then
promptly took steps to obtain travel documents for petitioner, including submission of a
presentation packet to the Embassy, service of Form I-229(a), and several attempts during
August and September 2012 to contact Embassy officials. Item 4-1, ¶¶ 13, 16. However,
on September 7, 2012, petitioner filed his petition for review of the final order of removal
with the Second Circuit.
Numerous decisions by the federal courts within the Second Circuit have held that
the filing of a petition for circuit court review of the final order of removal, accompanied by
a motion for stay of removal, triggers the application of a “forbearance policy” recognized
by agreement between DHS and the Second Circuit under which DHS has agreed not to
effectuate the removal of an alien while he or she has a petition for review pending before
the circuit court. See, e.g., Persaud v. Holder, 2011 WL 5326465, at *1 (W.D.N.Y. Nov.
3, 2011) (filing of petition for circuit court review of final order of removal along with motion
for stay of removal triggers “forbearance policy”); Luna-Aponte v. Holder, 743 F. Supp. 2d
189, 197 (W.D.N.Y. 2010) (even though circuit court had not “formally” ruled on motion to
stay accompanying petition for review of BIA’s dismissal of appeal from removal order,
forbearance policy is “the equivalent of a court-ordered stay of removal”); Shehnaz v.
Ashcroft, 2004 WL 2378371, at *2 (S.D.N.Y. Oct. 25, 2004) (where circuit court had not yet
ruled on alien's requests to stay removal and for review of BIA's order, a stay of removal

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was in effect pursuant to Second Circuit forbearance policy); cf. Abimbola v. Ridge, 181
F. App’x 97, 99 (2d Cir. 2006) (“consistent pattern” of filing petition for circuit court review
accompanied by motions to stay removal triggered application of Second Circuit's
forbearance policy; petitioner’s “self-inflicted wound should not establish grounds for [his]
Zadvydas claim”) (citing Doherty v. Thornburgh, 943 F.2d 204, 205 (2d Cir. 1991)
(petitioner cannot rely on delays resulting from litigation strategy to claim that prolonged
detention violates substantive due process).
Pursuant to this policy, the removal period which began on August 12, 2012 was
“effectively stayed” during the nearly 6-month period between September 7, 2012 and
March 3, 2013, when the Second Circuit dismissed the petition for review. Luna-Aponte,
743 F. Supp. 2d at 190. Therefore, DHS had fewer than 30 days to obtain the travel
documents necessary for execution of the removal order prior to the filing of the petition
for circuit court review (during which time petitioner’s detention was mandatory, see INA
§ 241(a)(2)), and DHS could not resume its efforts until the Second Circuit ruled.
Considering forbearance, the duration of the challenged detention in this case, as of the
date of this writing, is less than four months from the date the order of removal became
administratively final. 8 U.S.C. § 1231(a)(1)(B)(i).
Accordingly, because the detention challenged by the habeas petition in this action
has been prolonged by petitioner’s own pursuit of judicial review of the final order of
removal, the duration of his detention cannot be found to constitute a violation of his rights
under the due process clause of the Fifth Amendment. Doherty, 943 F.2d at 211 (refusing
to find eight-year detention unconstitutional where alien’s pursuit of judicial and

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administrative review caused the delay in removal); Dor v. District Director, INS, 891 F.2d
997, 1002 (2d Cir. 1989) (same, but with four year detention); see also Khaleque v.
Department of Homeland Sec., 2009 WL 81318, at *3 (W.D.N.Y. Jan. 9, 2009) (denying
alien’s habeas petition upon finding that alien “elected to file a petition for review and a
motion for a stay of removal” which “acted to prevent his removal until the Second Circuit
issued its mandate”).
Furthermore, considering petitioner’s habeas challenge under the due process
standards set forth in Zadvydas, petitioner must first “provide[ ] good reason to believe that
there is no significant likelihood of removal in the reasonably foreseeable future” beyond
the “presumptively reasonable” first six months of detention following his final removal
order. Zadvydas, 533 U.S. at 701. Only if he makes this initial showing does the burden
shift back to the government, which “must respond with evidence sufficient to rebut that
showing.” Id.; see also Wang, 320 F.3d at 146 (“reasonable foreseeability” test of
Zadvydas “articulates the outer bounds of the Government's ability to detain aliens (other
than those serving criminal sentences) without jeopardizing their due process rights”).
Upon review of the submissions on the present petition, the court finds that
petitioner has failed to sustain his initial burden under Zadvydas. The petition sets forth
no factual basis to substantiate petitioner’s belief that there is no significant likelihood he
can be removed to Guyana in the reasonably foreseeable future. He simply alleges that
the Embassy “has not issued travel documents and there is no certainty as to when, if ever,
such papers will be issued.” Item 1, ¶ 15. However, as discussed above, DHS records
submitted in connection with the present petition indicate that, following the circuit court’s

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ruling, DHS promptly resumed and has continued its efforts to obtain travel documents for
petitioner. Specifically, DHS file notations reveal that, on March 27, 2013, the deportation
officer assigned to petitioner’s case communicated with the Embassy to advise that
petitioner’s request for review of his BIA appeal had been denied by the Second Circuit,
and that the New York State courts have denied petitioner’s direct appeals and collateral
challenges to his state convictions. See Item 4-1, ¶¶ 22-23. According to an Embassy
representative, Guyana will not issue a travel document for petitioner until all litigation
regarding the legality of his removal–including the present habeas petition–has been
exhausted. Id. at ¶ 24. The request for a travel document for petitioner therefore remains
pending with the Embassy, and there is nothing in the present record to suggest that the
Guyanese authorities are inclined to deny the request once all of petitioner’s legal
challenges to his removal become final.
In addition, the statistical evidence in the records submitted to the court reveals that
in recent years, DHS has successfully repatriated significant numbers of aliens to Guyana,
indicating no institutional barriers to petitioner’s removal. For example, DHS reports show
that in fiscal year (“FY”) 2009, a total of 305 aliens were repatriated to Guyana; in FY 2010,
221 aliens were repatriated to Guyana; and in FY 2011, 189 aliens were repatriated to
Guyana.

See

DHS

Yearbook

of

Immigration

Statistics:

2011,

Table

41:

http://www.dhs.gov/yearbook-immigration-statistics-2011-3. These circumstances provide
a reasonable basis for DHS’s expectation that the verification required for the issuance of
a travel document by the government of Guyana can be accomplished within the

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reasonably foreseeable future following resolution of petitioner’s pending request for
habeas corpus review.
Significantly, petitioner has provided no evidence to contradict this expectation, or
to otherwise establish compliance with the requirements of the DHS regulations described
above. Instead, petitioner relies solely on the fact that his detention has exceeded the
presumptively reasonable six-month period established in Zadvydas. See Item 1, ¶¶ 15,
28. However, several cases decided within this district have found the habeas petitioner’s
assertion as to the unforeseeability of removal, supported only by the mere passage of
time, insufficient to meet the petitioner’s initial burden to demonstrate no significant
likelihood of removal under the Supreme Court=s holding in Zadvydas.

See, e.g.,

Khaleque, 2009 WL 81318, at *4 (petitioner failed to meet initial burden where the only
evidence relied upon was the fact that the Consulate had not responded positively to the
request for a travel document); Kassama v. Dep't of Homeland Sec., 553 F. Supp. 2d 301,
306-07 (W.D.N.Y. 2008) (petitioner failed to meet initial burden where there was no
evidentiary proof in admissible form to suggest that travel documents would not be issued);
Haidara v. Mule, 2008 WL 2483281, at *3 (W.D.N.Y. June 17, 2008) (petitioner failed to
meet initial burden where he “merely ma[de] the general assertion that he will not be
returned to [his country] in the foreseeable future”); Roberts v. Bureau of Immigration &
Customs Enforcement, 2007 WL 781925, at *2 (W.D.N.Y. Mar. 13, 2007) (petitioner who
did not present evidence that his country would not provide travel documents did not meet
initial burden of proof.); Singh v. Holmes, 2004 WL 2280366, at *5 (W.D.N.Y. Oct. 8, 2004)
(petitioner who “failed to submit anything demonstrating that there is no significant

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likelihood of removal in the reasonably foreseeable future” did not meet initial burden of
proof); see also Juma v. Mukasey, 2009 WL 2191247, at *3 (S.D.N.Y. July 23, 2009)
(vague, conclusory and general claims that removal is not foreseeable, and that Embassy
will not issue travel document in foreseeable future, fails to meet initial burden).
Based on this authority, and upon full consideration of the record presented by way
of the parties’ submissions, the court finds that petitioner has failed to meet his initial
burden under Zadvydas to “provide[ ] good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701.
Accordingly, petitioner has failed to demonstrate that he is “in custody in violation of the
Constitution or laws or treaties of the United States” for the purposes of granting habeas
corpus relief under 28 U.S.C. § 2241, and his petition must be denied.

CONCLUSION
For the foregoing reasons, the petition is denied, and the case is dismissed. This
dismissal is without prejudice to file another petition should it subsequently appear that the
presumptively reasonable period of post-removal-order detention has elapsed, and that
removal is no longer reasonably foreseeable. See Andreenko v. Holder, 2012 WL
4210286, at *5 (W.D.N.Y. Sept. 18, 2012); Kassama, 553 F. Supp. 2d at 307.
It is further ordered that certification pursuant to 28 U.S.C. § 1915(a)(3) be entered
stating that any appeal from this Judgment would not be taken in good faith and therefore
leave to appeal as a poor person should be denied. Coppedge v. United States, 369 U.S.
438 (1962).

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The Clerk of the Court is directed to enter judgment in favor of respondent, and to
close the case.

So ordered.

\s\ John T. Curtin
JOHN T. CURTIN
United States District Judge
Dated:

June 5, 2013

p:\pending\2013\13-185.2241.jun3.2013

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