Diaria v. Lynch et al

Filing 12

DECISION AND ORDER re 1 Petition for Writ of Habeas Corpus filed by Amara Diaria. Diaria's petition is denied, and this action is dismissed. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the Un ited States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure. The Clerk of the Court is directed to terminate this action. Signed by Hon. Charles J. Siragusa on 7/16/18. Copy of this decision and order and NEF mailed to pro se petitioner at Buffalo Federal Detention Facility.(KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
AMARA DIARIA, A205-309-061,
Petitioner,

DECISION AND ORDER

-vs17-CV-6028 (CJS)
JEFF B. SESSIONS, Attorney General of the
United States of America, et al.,
Respondents.
__________________________________________
INTRODUCTION
Amara Diaria (“Diaria” or “Petitioner”), a citizen of the Ivory Coast, after being
convicted in New York State for various violent felonies including Robbery in the Second
Degree, became the subject of a final order of removal, as an alien present in the United
States without being admitted or paroled. Diaria, who did not appeal such order, has been
in the custody of the Department of Homeland Security (“DHS”) since June 24, 2016, while
DHS has been attempting to obtain the travel documents required to remove him to Ivory
Coast. In this action filed pursuant to 28 U.S.C. § 2241, Diaria argues that his continued
detention is unreasonable and unlawful, based, inter alia, on the Supreme Court's decision
in Zadvydas v. I.N .S., 533 U.S. 678, 121 S.Ct. 2491 (2001) (“Zadvydas”). The Court
disagrees, and denies the application for writ of habeas corpus.
BACKGROUND
The reader is presumed to be familiar with the facts of this action. On January 12,
2017, Diaria, proceeding pro se, filed the subject petition [#1], which purports to assert three
claims: 1) his continued detention violates “8 U.S.C. § 1231(a)(6) as interpreted by the
Supreme Court in Zadvydas,” because his removal is not likely to occur in the reasonably
foreseeable future; 2) for the same reasons, his continued detention violates “substantive
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due process under the Fifth Amendment”; and 3) his continued detention “without a
meaningful review of his detention in accordance with federal regulations violates his right
to procedural due process under the Fifth Amendment.”
On March 20, 2017, Respondents filed an Answer and Return [#5] to the Petition and
a Memorandum of Law [#6]. The Memorandum of Law [#6] includes the following points:
1) Diaria’s continued detention is lawful under 8 U.S.C. § 1231(a) and Zadvydas, since he
has not shown that “there is no significant likelihood of removal in the reasonably
foreseeable future”; 2) since September 26, 2016, DHS has been in regular contact with
representatives of Ivory Coast regarding a request for a travel document for Diaria; 3) Ivory
Coast has not indicated that it is unwilling to accept Diaria, but is attempting to verify his
identity, and, in that regard, is requiring an original passport; and 4) in the meantime, Diaria
has been provided with due process as required by the pertinent statutes and regulations,
including 8 CFR § 241.4, involving reviews of his custody status conducted on September
29, 2016, and December 13, 2016.
On March 31, 2017, Petitioner filed a reply/traverse [#7], in which he asserts, inter
alia, that Respondents “have presented false documents, misled the courtl alterered
documents and committed fraud.” This assertion, however, relates primarily to a contention
that Diaria refused to sign a form (Form I-229(a)), that has little bearing on the merits.
Otherwise, Petitioner relies upon the passage of time to argue that his removal is not likely
in the reasonably foreseeable future.
On July 5, 2018, the Court received a telephone call from an attorney calling on
Diaria’s behalf, inquiring about the matter. Frankly, such call alerted the Court to the fact
that this action had somehow been overlooked, and was long overdue for a decision. Since
the Court was unaware of the present status of the Government’s attempts to remove
Diaria, the Court’s staff immediately emailed the Government’s attorney and requested that

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the Government submit a supplemental affidavit. On July 6, 2018, Respondents filed a
supplemental declaration [#11], indicating in pertinent part that the Department of Homeland
Security (“DHS”) has now made arrangements with Ivory Coast for Diaria’s removal, and
that “DHS now has travel documents allowing until September 8, 2018 for Petitioner’s
removal,” and that “DHS has [scheduled] Petitioner’s removal from the United States via [a
charter flight.]” Respondents have also submitted a timeline, detailing their communications
with representatives of Ivory Coast.
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. 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 (8 U.S.C. § 1231), which authorizes
detention of aliens after the issuance of a final removal order.
Diaria is confined under the latter statute, which provides authority to detain an alien
once the decision on removal is made, and the removal order becomes final. In that regard,
INA § 241(a) requires the Attorney General to accomplish removal 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.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the
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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—like
Petitioner—who have been determined to be a threat to the community or a risk of flight,
beyond the expiration of the ninety-day removal period. See, INA § 241(a)(6).1
In Zadvydas, the Supreme Court was presented with the challenge of reconciling the
INA's apparent authorization of indefinite post-removal order 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 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

See, 8 U.S.C.A. § 1231(a)(6) (“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).”).
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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.
In the instant case, Diaria is not entitled to habeas relief because he has not shown
that there is no significant likelihood of his removal to Ivory Coast in the reasonably
foreseeable future. To the contrary, the record indicates, first, that there is no institutional
barrier to Diaria’s removal, and second, that arrangements have now been made to effect
Diaria’s removal prior to September 8, 2018.
In sum, Diaria has not met his initial burden under Zadvyas. However, even
assuming, arguendo, that Diaria had met his initial burden under Zadvydas, the Court would
nevertheless find that Respondents have met their burden on rebuttal. In short, the
evidence does not establish that there is no significant likelihood of removal in the
reasonably foreseeable future. For these same reasons, Diaria also has not shown that he
is being denied substantive due process.
As for the remaining aspect of Diaria’s petition, it is notable that his traverse/reply
[#7] does not challenge the assertions in Respondent’s Answer and Return [#5] concerning
periodic custody reviews that have been performed. Accordingly, the Court finds that such
claims lack merit.
CONCLUSION
Diaria’s petition is denied, and this action is dismissed. The Court hereby certifies,
pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in good
faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v.
United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma
pauperis should be directed on motion to the United States Court of Appeals for the Second
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Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure. The Clerk
of the Court is directed to terminate this action.
SO ORDERED.
Dated: Rochester, New York
July 16, 2018

ENTER:

/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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