Islam v. Philips et al
Filing
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-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 4/23/2015. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MOHAMMED ISLAM, A77-318-159,
Petitioner,
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14-CV-930-JTC
MICHAEL PHILIPS, Field Office Director for
United States Immigration and Customs Enforcement
U.S. Department of Homeland Security,
TODD TRYON, Assistant Field Office Director
Buffalo Federal Detention Facility,
ALEJANDRO MAYORKAS, Deputy Secretary,
U.S. Immigration and Customs Enforcement
U.S. Department of Homeland Security,
JEH JOHNSON, Secretary U.S. Department of
Homeland Security, and
ERIC H. HOLDER, Jr., Attorney General
U.S. Department of Justice,
Respondents.
INTRODUCTION
Petitioner Mohammed Islam, an alien under a final immigration order of removal
from the United States, has filed a 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 his removal. See Item 1. As directed by this court’s order entered
December 3, 2014 (Item 2), respondent1 has submitted an answer and return (Item 4),
along with an accompanying memorandum of law (Item 5), in opposition to the petition.
Despite ample opportunity to do so, petitioner (who is represented by counsel) has not filed
a reply.
For the reasons that follow, the petition is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
DHS records on file with the court show that petitioner, a native and citizen of
Bangladesh, entered the United States at Los Angeles, California, on October 20, 2000,
upon presentation of a counterfeit alien registration number as proof of lawful permanent
resident status. See Item 4-2 (Exh. A, attached to Declaration of DHS Deportation Officer
Juanita Payan, Item 4-1), pp. 10, 18. He was placed in immigration removal proceedings
by a Notice to Appear (“NTA”) dated December 4, 2000, charging him with being subject
to removal from the United States pursuant to Section 212(a)(6)(C)(i) of the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(6)(C)(i), as an alien who by fraud or willfully
misrepresenting a material fact sought to procure entry into the United States, and
pursuant to INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant who at
the time of application for admission was not in possession of a valid unexpired immigrant
visa, reentry permit, border crossing card, or other valid entry document alien required by
the INA. Item 4-2, pp. 18-19.
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).
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On June 23, 2003, an immigration judge (“IJ”) denied petitioner’s applications for
relief and ordered him removed from the United States to Bangladesh. Id. at 17. Petitioner
appealed the IJ’s decision, and on August 25, 2004, the Board of Immigration Appeals
(“BIA”) dismissed the appeal. Id. at 15-16. According to DHS records, petitioner was
removed from the United States on May 20, 2006, pursuant to the IJ’s order. Id. at 3.
On October 20, 2013, petitioner was encountered in the United States near Hidalgo,
Texas, by United States Border Patrol officers.
Id. at 22.
After verification of his
immigration status, petitioner was served with a Notice of Intent/Decision to Reinstate Prior
Order (Form I-871), and he was placed in DHS custody pending removal pursuant to the
IJ’s reinstated order.
Id. at 3.
DHS records show that petitioner asserted fear of
persecution or torture by a political party if returned to Bangladesh, and he was referred
to an asylum officer with the United States Citizenship and Immigration Services (“USCIS”)
for a “reasonable fear determination” pursuant to the procedures set forth at 8 C.F.R.
§ 208.31. See Item 4-1, ¶ 11; Item 4-2, p. 22.
On October 30, 2013, DHS served petitioner with a formal Warning for Failure to
Depart (Form I-229(a)), along with an instruction sheet listing actions that petitioner was
required to complete within 30 days to assist in obtaining a travel document for his removal
from the United States. Item 4-2, pp. 13-14. The warning form advised petitioner, among
other things, of penalties under INA § 243 (8 U.S.C. § 1253) 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) (8 U.S.C. § 1231(a)(1)(C)), failure to comply or provide
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sufficient evidence of his inability to comply may result in the extension of the removal
period and subject him to further detention. Id.
In January 2014, DHS conducted a review of petitioner’s custody status in
accordance with immigration regulations (see 8 C.F.R. § 241.4), and on January 15, 2014,
DHS notified petitioner that, based upon the totality of available information, it was
determined that his detention would continue because he would pose a significant risk of
flight if he were to be released from custody. Item 4-2, p. 11. Subsequent custody status
reviews were conducted in April, August, and November 2014, with similar results. Id. at
4-9.
On December 10, 2014, an asylum officer issued a negative finding with respect to
petitioner’s claim of reasonable fear of persecution in his country of nationality. Id. at 23.
As indicated on the Record of Negative Reasonable Fear Finding (Form I-898), petitioner
did not request IJ review of the asylum officer’s determination. Id.
On January 5, 2015, the DHS officer assigned to petitioner’s removal case reported
that a request for a travel document for petitioner had been submitted to the Consulate for
Bangladesh, and was pending. Item 4-1, ¶ 19.
Meanwhile, petitioner filed this action on November 3, 2014, seeking habeas corpus
relief pursuant to 28 U.S.C. § 2241 on the ground that his continued detention in DHS
custody without a bond hearing is based upon an unlawful interpretation of the immigration
laws, and violates his right to due process. See Item 1. Upon full consideration of the
matters set forth in the submissions on file, and for the reasons that follow, the petition is
denied.
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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 v. Davis, 533 U.S. 678, 687 (2001) (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 removal are governed
by INA § 241, which authorizes detention of aliens after the issuance of a final removal
order for 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.
(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 expressly provides for the custody of aliens who, like petitioner
here, have illegally reentered the United States after having already been removed:
If the Attorney General finds that an alien has reentered the United States
illegally after having been removed or having departed voluntarily, under an
order of removal, the prior order of removal is reinstated from its original date
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and is not subject to being reopened or reviewed, the alien is not eligible and
may not apply for any relief under this chapter, and the alien shall be
removed under the prior order at any time after the reentry.
8 U.S.C. § 1231(a)(5). Pursuant to this provision, since petitioner may not seek review of
his removal order from the date of its reinstatement, the order became administratively
final–and petitioner’s 90-day detention period began–when the order was reinstated by
DHS on October 20, 2013. Khemlal v. Shanahan, 2014 WL 5020596, at *3 (S.D.N.Y., Oct.
8, 2014); Moreno-Gonzalez v. Johnson, 2014 WL 5305470, at *3 n. 2 (S.D.Ohio, Oct. 15,
2014) (reinstated order of removal is usually final upon reinstatement because original
order is not subject to reopening or review, and alien is not otherwise permitted to seek
relief from the order);2 see also Lema v. Holder, 363 F. App'x 88, 90 (2d Cir. 2010) (aliens
“ ‘have no constitutional right to force the government to re-adjudicate a final removal order
by unlawfully reentering the country’ ”); Garcia–Villeda v. Mukasey, 531 F.3d 141, 148, 151
n. 8 (2d Cir. 2008) (“illegal reentrants are now categorically declared ineligible for any relief
from removal” except for withholding of removal due to reasonable fear claims). The
regulations provide further that, as an alien “not lawfully admitted” and subject to a
reinstated final order of removal, petitioner is not entitled to a bond hearing before an
immigration judge. See 8 C.F.R. §§ 1236.1(c)(2) (aliens “not lawfully admitted” are not
eligible to be considered for release from custody); 241.8(a) (“An alien who illegally
2
The court notes authority for the proposition that a reinstated removal order does not become
administratively final until resolution of a pending application for withholding based on reasonable fear of
persecution. See, e.g., Guerra v. Shanahan, 2014 WL 7330449, at *3-5 (S.D.N.Y. Dec. 23, 2014)
(discussing federal district court cases holding that a detainee's reinstated removal order cannot be
administratively final while the detainee's withholding application is pending). In this case, there is no
question as to the finality of petitioner’s reinstated removal order, as the record before the court indicates
that petitioner’s claim of reasonable fear of persecution was resolved on December 10, 2014, and
petitioner did not seek IJ review of the determination. In any event, neither party has raised the issue of
finality on this petition, and the court therefore declines to address it.
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reenters the United States after having been removed … while under an order of exclusion,
deportation, or removal shall be removed from the United States by reinstating the prior
order.
The alien has no right to a hearing before an immigration judge in such
circumstances.”).
Accordingly, petitioner’s current detention is authorized under the post-final removal
order custody authority set forth in INA § 241. See 8 C.F.R. § 241.8(f) (“Execution of the
reinstated order of removal and detention of the alien shall be administered in accordance
with this Part (governing Post-Hearing Detention and Removal).”).
Pursuant to
INA§ 241(a), petitioner’s post-final removal order detention was mandatory for a ninety-day
period from October 20, 2013 to January 20, 2014. See 8 U.S.C. § 1231(a)(1)(A), (2).
Authority for detention beyond the 90-day removal period is derived from INA § 241(a)(6),
which grants the Attorney General discretion to continue detention of aliens ordered
removed due to inadmissibility (like petitioner here) beyond the expiration of the removal
period if it is determined that the alien “is a risk to the community or unlikely to comply with
the order of removal ….” 8 U.S.C. § 1231(a)(6).3
In Zadvydas, the Supreme Court was presented with the challenge of reconciling
this apparent authorization of indefinite detention of certain aliens with the Fifth
Amendment’s prohibition against depriving a person of their liberty without due process.
3
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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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 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.”
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
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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:
[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.”).
Under Zadvydas, the first six months of detention following a final removal order are
“presumptively reasonable.” Zadvydas, 533 U.S. at 701. Once the six-month period has
passed, the burden shifts to the alien detainee to “provide[ ] good reason to believe that
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there is no significant likelihood of removal in the reasonably foreseeable future.” Id. Only
if the alien makes this showing does the burden shift back to the government, which “must
respond with evidence sufficient to rebut” the alien's showing that there is no significant
likelihood that he or she will be deported in the reasonably foreseeable future. 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 Bangladesh in the reasonably foreseeable future. He simply alleges
that his detention is unlawful, and violates his right to due process. However, as discussed
above, the record before the court reveals the undisputed statutory basis for petitioner’s
detention under INA § 241(a)(6), as an inadmissible alien subject to a reinstated final order
of removal. See 8 U.S.C. §§ 1231(a)(6); 1182(a)(6)(C)(i), (ii); 1182(a)(7)(A)(i)(I). His
custody status has been reviewed at regular intervals in accordance with the regulations,
and upon each of these reviews, DHS determined to continue petitioner’s detention
because he posed a significant risk of flight if released.
Furthermore, DHS records reflect that upon issuance of petitioner’s negative
reasonable fear finding, a prompt request was made to the Consulate for Bangladesh to
secure a travel document for petitioner, and there is nothing in the record before the court,
beyond the pendency of the request, to indicate that authorities at the Consulate are
inclined to deny it. Moreover, the available statistical evidence reveals that in recent years,
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DHS has successfully repatriated significant numbers of aliens to Bangladesh, indicating
no institutional barriers to petitioner’s removal. For example, DHS reports show that in
fiscal year (“FY”) 2010, a total of 96 aliens were repatriated to Bangladesh; in FY 2011, 88
aliens were repatriated to Bangladesh; and in FY 2013, 58 aliens were repatriated to
Bangladesh. See DHS Yearbook of Immigration Statistics: 2012, Table 41:
https://www.dhs.gov/yearbook-immigration-statistics-2012-enforcement-actions; Item 4-1,
¶ 20. These circumstances provide a reasonable basis for DHS’s expectation that the
verification required for the issuance of a travel document can be accomplished within the
reasonably foreseeable future, after which time the necessary travel arrangements may
be made for petitioner’s release from custody and his repatriation to Bangladesh.
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, his due process claim appears to rely solely on the fact that his detention
has exceeded the presumptively reasonable six-month period established in Zadvydas.
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
v. Department of Homeland Sec., 2009 WL 81318, at *4 (W.D.N.Y. Jan. 9, 2009)
(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
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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 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 submissions made in opposition to the petition, 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.
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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).
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: April 23, 2015
p:\pending\2014\14-930.2241.apr22.2015
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