Diakhate v. Searls

Filing 25

DECISION AND ORDER denying 12 Motion to file an amended petition; denying 13 Motion for an investigation; denying 14 Motion for a stay of removal; denying 15 Motion for Sanctions; denying 16 Motion for relief from conditions of confine ment; denying 17 Motion to amend or correct; denying 18 Motion for reconsideration ; denying 19 Motion for a stay of removal; denying 20 Motion for a stay of removal; granting in part and denying in part 21 Motion to dismiss. Respondent directed to file a supplemental brief within 45 days; Petitioner to file any response within 20 days of receipt of supplemental brief. Signed by Hon. Elizabeth A. Wolford on 11/25/2024. (CDH)This was mailed to: Petitioner.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHEIKH DIAKHATE,
DECISION AND ORDER

Petitioner,

6:23-CV-06736 EAW

v.
BRIAN CASEY1,
Respondent.

INTRODUCTION
Pro se petitioner Cheikh Diakhate (“Petitioner”), a civil immigration detainee currently
held at the Buffalo Federal Detention Facility (“BFDF”) in Batavia, New York, has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1).2 Petitioner
previously sought an injunction barring his removal during the pendency of this action (Dkt.
8), which the Court denied (Dkt. 9).

1

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Brian Casey has been
substituted as Respondent in this action. The Clerk is directed to amend the case caption
accordingly.
2

The petition also purports in the caption to be a “complaint for declaratory and
injunctive relief.” (Dkt. 1 at 1). However, the relief sought by Petitioner is specifically release
from custody. (See id. at 45-46). Petitioner’s attack on his detention falls “squarely within
[the] traditional scope of habeas corpus,” Preiser v. Rodriguez, 411 U.S. 475, 487 (1973), he
indicated on his civil cover sheet that this was a habeas corpus petition (Dkt. 1-2), and he has
paid the $5.00 filing fee for a habeas corpus petition and not the $350 filing fee for a general
civil action. The Court accordingly treats the case as a petition for a writ of habeas corpus.
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Petitioner has now filed nine motions: (1) a motion to file an amended petition (Dkt.
12); (2) a motion seeking an investigation into alleged misconduct by immigration judge
(“IJ”) Robert P. Driscoll (Dkt. 13); (3) a motion for a stay of removal while this action is
pending (Dkt. 14); (4) a motion for sanctions (Dkt. 15); (5) a motion seeking relief from
certain conditions of confinement at the BFDF (Dkt. 16); (6) a motion to file an amended
petition and for class certification (Dkt. 17); (7) a motion for reconsideration of the Court’s
denial of his request for injunctive relief (Dkt. 18); (8) another motion for a stay of removal
while this action is pending (Dkt. 19); and (9) a third motion for a stay of removal while this
action is pending (Dkt. 20). Respondent has moved to dismiss the petition. (Dkt. 21).
For the reasons that follow, Petitioner’s pending motions are denied, Respondent’s
motion is granted in part and denied in part, and the parties are directed to make supplemental
filings as described further below.
BACKGROUND
Petitioner is a citizen and national of Senegal. (Dkt. 21-2 at ¶ 5). Petitioner was
ordered removed to Senegal on July 17, 2023. (Id. at ¶ 39). He appealed that decision to the
Board of Immigration Appeals (“BIA”). (Id. at ¶ 40). On December 12, 2023, the BIA
dismissed Petitioner’s appeal. (Id. at ¶ 41).
Petitioner had filed a Petition for Review (“PFR”) with the Second Circuit on
December 19, 2022, while his removal proceedings were ongoing. (Id. at ¶ 30). His PFR was
dismissed by order dated November 13, 2023, with the mandate issuing on January 19, 2024.
(Dkt. 21-3 at 54). The record before the Court is devoid of any information suggesting that

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Petitioner filed a second PFR after the BIA dismissed his appeal. (See Dkt. 20 at 9 (Petitioner
indicating that he has no action pending in the Second Circuit)).
Petitioner commenced this action on December 27, 2023. (Dkt. 1). He filed his initial
motion for an injunction barring his removal during the pendency of this action on March 28,
2024. (Dkt. 8). The Court denied that motion on April 3, 2024. (Dkt. 9).
Petitioner thereafter filed his nine pending motions and Respondent filed his motion to
dismiss. (Dkt. 12; Dkt. 13; Dkt. 14; Dkt. 15; Dkt. 16; Dkt. 17; Dkt. 18; Dkt. 19; Dkt. 20; Dkt.
21). Neither party has filed response papers. However, after filing his pending motions,
Petitioner filed a notice of interlocutory appeal as to the Court’s denial of his original motion
for an injunction barring his removal during the pendency of this action. (Dkt. 23).
DISCUSSION
I.

Petitioner’s Motions
A.

Motions to Amend and for Class Certification

The Court begins its analysis by considering Petitioner’s motions to amend and for
class certification. (Dkt. 12; Dkt. 17). Petitioner seeks to file an amended petition that asserts
various claims on behalf of a class of detainees at the BFDF. (See, e.g., Dkt. 12 at 4-5). The
members of the putative class are “typically citizens of” what Petitioner refers to as
“AMMMLACCC countries”—“AMMMLACCC” standing for “Africa, Mexico, Majority
Muslim, Latin America, the Caribbean and Communist Controlled.” (Id. at 6-7). In sum and
substance, Petitioner alleges that citizens of “AMMMLACCC” countries are ordered
removed and held in immigration custody at rates disproportionate to citizens of

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“WECANZS” (“Western Europe, Canada, Australia, New Zealand, and/or Scandinavia”)
countries, in violation of the equal protection clause. (Id. at 7-23).
Petitioner is proceeding pro se and is not an attorney. In his proposed amended
complaint, he explicitly states that he is “a layman, untrained in the law[.]” (Id. at 6).
“Because a nonlawyer cannot bring suit on behalf of others, a nonlawyer pro se plaintiff
cannot act as a class representative and bring a class action.” Santos v. Quaker Oat Pesticide,
No. 1:24-CV-5396 (LTS), 2024 WL 4627460, at *2 (S.D.N.Y. Oct. 26, 2024); see also
Rodriguez v. Eastman Kodak Co., 88 F. App’x 470, 471 (2d Cir. 2004) (affirming dismissal
of pro se class action complaint and explaining that “[a]lthough plaintiffs have a right to
proceed pro se in civil actions pursuant to 28 U.S.C. § 1654, a pro se plaintiff may not seek
to represent the interests of third-parties”). The Court accordingly denies Petitioner’s motions
seeking to amend the petition to assert claims on behalf of a class and for class certification.
(Dkt. 12; Dkt. 17).
B.

Motion for an Investigation

The Court next considers Petitioner’s motion for an investigation into alleged
misconduct by IJ Driscoll and other IJs at the BFDF. (Dkt. 13). Petitioner contends that these
IJs have engaged in misconduct designed to cover up discriminatory animus towards
detainees from “AMMMLACCC” countries. (See id.).
To the extent Petitioner is asking the Court to conduct its own investigation, he has
misunderstood the Court’s role. The Court itself is not an investigatory agency and does not
have general supervisory authority over the IJs at the BFDF, who are employees of the

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executive branch. There is no mechanism by which the Court could or should conduct a
freestanding investigation into alleged misconduct at the BFDF.
To the extent Petitioner is seeking to conduct discovery into alleged misconduct by the
IJs at the BFDF in connection with this proceeding, “[a] habeas petitioner, unlike the usual
civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Bracy
v. Gramley, 520 U.S. 899, 904 (1997). “Courts have adopted the Rules Governing Section
2254 Cases, including its discovery Rule 6 . . . in habeas proceedings under § 2241.”
Toolasprashad v. Tryon, No. 12CV734, 2013 WL 1560176, at *2 (W.D.N.Y. Apr. 11, 2013);
see also Rules Governing Section 2254 Cases in the United States District Courts, Rule 1(b)
(“The district court may apply any or all of these rules to a habeas corpus petition not covered
by Rule 1(a).”). Under Rule 6, the party seeking discovery must demonstrate “good cause.”
Rules Governing Section 2254 Cases in the United States District Courts, Rule 6(a), (b). “In
the absence of such a showing, the Court may exercise its discretion to deny a discovery
request in a habeas proceeding under Section 2241.” Yosef v. Killian, 646 F. Supp. 2d 499,
504 n.4 (S.D.N.Y. 2009).
Petitioner has not demonstrated good cause to permit discovery into alleged
misconduct by the IJs at the BFDF. His argument is centered around his disagreement with
various actions taken by IJ Driscoll in other individuals’ removal proceedings, but he has not
identified any basis to conclude that the requested information would support his individual
habeas claims. At best, the information appears potentially related to the legitimacy of
Petitioner’s removal order. But—as will be discussed further below—this Court has no
jurisdiction over any claims attacking the legitimacy of Petitioner’s removal order. Under
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these circumstances, the Court declines to order discovery. Accordingly, Petitioner’s motion
for an investigation (Dkt. 12) is denied.
C.

Motions to Stay Removal and for Reconsideration

The Court next considers Petitioner’s various motions to stay his removal during the
pendency of this habeas proceeding, and for reconsideration of the Court’s prior denial of an
injunction granting such relief. (Dkt. 14; Dkt. 18; Dkt. 19; Dkt. 20).
As an initial matter, the Court considers the impact of Petitioner’s pending notice of
interlocutory appeal. “[A]n interlocutory appeal, unless frivolous, generally divests the
district court of jurisdiction respecting the issues raised and decided in the order on appeal.”
Ret. Bd. of Policemen’s Annuity & Ben. Fund of City of Chicago v. Bank of New York Mellon,
297 F.R.D. 218, 220 (S.D.N.Y. 2013). Here, Petitioner filed a notice of interlocutory appeal
as to the denial of his request for an injunction barring his removal while this action is pending.
(Dkt. 23). Because an order denying an injunction is immediately appealable, see 28 U.S.C.
§ 1292(a)(1), the Court is not prepared to conclude that Petitioner’s notice of interlocutory
appeal is frivolous.
However, “the filing of a notice of appeal does not divest the district court of
jurisdiction to decide any of the postjudgment motions listed in Fed. R. App. P. 4(a)(4)(A), if
timely filed. On the contrary, the notice of appeal must be held in abeyance by [the court of
appeals] until all such motions are disposed of, at which point the notice of appeal becomes
effective.” Hodge ex rel. Skiff v. Hodge, 269 F.3d 155, 157 n.4 (2d Cir. 2001); see also Fed.
R. App. P. 4(a)(4)(B)(i) (“If a party files a notice of appeal after the court announces or enters
a judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice
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becomes effective to appeal a judgment or order, in whole or in part, when the order disposing
of the last such remaining motion is entered.” (emphasis added)). Here, the Second Circuit
determined that Petitioner had filed “at least one motion cited in FRAP 4(a)(4)” and
consequently stayed the appeal pending resolution thereof. See Diakhate v. Searls, No. 241492, Dkt. 21 (2d Cir. Sept. 13, 2024). As such, Petitioner’s notice of interlocutory appeal
has not yet become effective under Federal Rule of Appellate Procedure 4(a)(4)(B)(i).3
The Court has already explained to Petitioner that it lacks the authority to stay his
removal from the United States. (See Dkt. 9). “The REAL ID Act of 2005 mandates that
judicial review of all administratively final orders of removal take place exclusively in the
courts of appeals[.]” Ahmed v. Barr, No. 20-CV-395 (JLS), 2020 WL 2395694, at *2
(W.D.N.Y. May 12, 2020); see 8 U.S.C. § 1252(a)(5) (“Notwithstanding any other provision
of the law (statutory or nonstatutory) . . . a petition for review filed with an appropriate court
of appeals in accordance with this section shall be the sole and exclusive means for judicial
review of an order of removal entered or issued under any provision of this chapter.”). The
Second Circuit has held that this “jurisdictional bar applies equally to preclude . . . an indirect
challenge” to a removal order. Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011).
Additionally, § 1252(g) provides that “no court shall have jurisdiction to hear any cause or
claim by or on behalf of any alien arising from the decision or action by the Attorney General
to commence proceedings, adjudicate cases, or execute removal orders against any alien.”

3

Alternatively, the Court would have the authority to deny Petitioner’s motions pursuant
to Federal Rule of Civil Procedure 62.1.
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“[N]umerous courts in this circuit and others” have concluded “that the plain meaning
of Section 1252 deprives federal district courts of jurisdiction over requests to stay orders of
removal.” Ahmed v. Barr, No. 20-CV-395 (JLS), 2020 WL 2395694, at *2 (W.D.N.Y. May
12, 2020) (collecting cases); see also Al-Garidi v. Holder, No. 09-CV-6160L, 2009 1439216,
at *1 (W.D.N.Y. May 15, 2009) (“This Court and other district courts throughout the country
have routinely held that because district courts have no jurisdiction to review final orders of
removal, they have no jurisdiction to review requests for stays of removal.”) (collecting
cases).
In this case, Petitioner asks the Court to stay his removal specifically to “prevent the
DHS/ICE from potentially unlawfully removing” him. (Dkt. 14 at 14-15). He also explicitly
argues that if he “is successfully ordered released on his habeas corpus petition, any removal
order would be nullified[.]” (Dkt. 20 at 9). It is apparent that Petitioner’s requests for a stay
are based on attacks on his removal order. The Court thus lacks jurisdiction thereover.4
Petitioner’s motions seeking this relief—and seeking reconsideration of the Court’s prior
denial of this relief—are denied.
The Court notes that in his motion for reconsideration, Petitioner purports to seek “a
declaration . . . ordering that Elizabeth A. Wolford should be removed form [sic] this case.”

4

Even if it had jurisdiction to do so, the Court would not enter an order staying
Petitioner’s removal pending resolution of this matter. As discussed in more detail below, the
only claim that is properly before this Court is that Petitioner’s detention pending removal has
become unconstitutionally prolonged. “If Petitioner was removed from the United States, he
would no longer be detained, and his habeas petition would be denied as moot.” (Dkt. 9). In
other words, the Court would not order Respondent not to remove Petitioner from the United
States when doing so would grant him the relief he is seeking—release from immigration
detention.
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(Dkt. 18 at 27). To the extent this is meant to be a request for recusal, it is denied. The reason
given by Petitioner for his request is that the undersigned has “tried to stifle a challenge to the
constitutionality of the DEATH to Non-White Statutes5 and to shield arbitrary and
discriminatory enforcement of immigration laws from Article III Court review.” (Id.).
Petitioner’s disagreement with the Court’s handling of this case is not a basis for recusal. See
Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never
constitute a valid basis for a bias or partiality motion. . . . Almost invariably, [judicial rulings]
are proper grounds for appeal, not for recusal.”).
D.

Motion for Sanctions

Petitioner’s motion filed at Docket No. 15 seeks: (1) a declaration that the “DEATH to
Non-White Statutes” are unconstitutional; (2) the A-files of all “AMMMLACCC” citizens in
removal proceedings; and (3) sanctions to be used “towards setting up a fund to assist
AMMMLACCC families adversely affected by unlawful deportations.” (Dkt. 15 at 1).
Petitioner has identified a number of provisions of Title 8 of the United States Code
that he refers to collectively as “the DEATH to Non-White Statutes, where DEATH means
‘disguised enforcement and adjudication of terroristic hatred.’” (Id. at 2). He asks the Court
to declare that these statutes are unconstitutional “due to arbitrary and discriminatory
enforcement against AMMMLACCC citizens.”

(Id. at 28).

Petitioner has failed to

demonstrate his entitlement to such relief. Without getting into the many other procedural
and substantive flaws in Petitioner’s request, “habeas corpus is the only avenue available to

5

The Court explains what Petitioner means by this phrase later in this Decision and

Order.
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confined individuals who seek to invalidate the duration of their confinement—either directly
through an injunction compelling speedier release or indirectly through a judicial
determination that necessarily implies the unlawfulness of the State’s custody,” and “a
declaratory judgment action may only lie where the plaintiff seeks monetary damages or other
relief that would not directly impact his or her . . . duration of commitment.” Dyous v.
Psychiatric Sec. Rev. Bd., 708 F. App’x 39, 40 (2d Cir. 2018). As the Court explained above,
the relief sought in the petition is release from custody. (See Dkt. 1 at 45-46). Under these
circumstances, issuance of a declaratory judgment would not be appropriate.
Petitioner’s request for the A-files of other individuals fails for the same reasons as his
request for discovery into alleged misconduct by the IJs at the BFDF. Petitioner has not
shown good cause to think that these files would contain information related to the habeas
claim that is properly before this Court—that is, the legality of Petitioner’s detention pending
removal.
Finally, Petitioner has failed to identify an appropriate legal basis for issuance of
sanctions. Petitioner’s arguments assume that he will prevail on the merits of his claims, but
that has not been determined. Further, the proposed sanctions seek to remedy the class action
claims that Petitioner has been denied leave to pursue. His request for sanctions is thus also
denied.
E.

Motion Regarding Conditions of Confinement

Petitioner’s next motion attacks the conditions of confinement at the BFDF. (Dkt. 16).
Petitioner asserts that another detainee at the BFDF, Darron Thomas, has “been hampered in

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his preparation of several court documents” because of the conditions of confinement,
including lack of access to flash drives and fax machines. (Id. at 2-3).
Regardless of the validity of these claims as to Mr. Thomas, Petitioner has failed to
establish that they have any relevancy to the claims presented in this action. Petitioner has
also not demonstrated that any alleged deficiencies at the BFDF have prevented him from
presenting his claims in this action. See generally Benjamin v. Fraser, 264 F.3d 175, 185 (2d
Cir. 2001) (explaining that “law libraries and legal assistance programs do not represent
constitutional rights in and of themselves, but only the means to ensure a reasonably adequate
opportunity to present claimed violations of fundamental constitutional rights to the courts,”
and thus “in the absence of actual or imminent harm,” the judiciary must “leave to the political
branches the choice among alternative means to achieve meaningful access to the courts”
(quotations and alterations omitted). This motion is therefore denied.
For all these reasons, the Court denies each of Petitioner’s pending motions. (Dkt. 12;
Dkt. 13; Dkt. 14; Dkt. 15; Dkt. 16; Dkt. 17; Dkt. 18; Dkt. 19; Dkt. 20).
II.

Respondent’s Motion to Dismiss
The Court turns now to Respondent’s motion to dismiss the petition. (Dkt. 21).

Respondent argues that: (1) the petition is premature to the extent it challenges Petitioner’s
ongoing detention pending removal; and (2) to the extent Petitioner seeks to bring other
challenges, the Court either lacks jurisdiction to hear those claims or those claims are not
cognizable. (See Dkt. 21-1). For the reasons that follow, the Court grants Respondent’s
motion with respect to all claims not related to the legality of Respondent’s prolonged

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detention pending removal, but denies it solely as to Petitioner’s claim this detention has
become unconstitutionally prolonged.
A.

Indirect Challenges to Removal and Other Claims

The petition in this case is somewhat difficult to understand. As Respondent notes,
Petitioner appears at one point to be attempting to assert that he is unlawfully detained in
violation of the double jeopardy clause. (Dkt. 21-1 at 12; see Dkt. 1 at 39). But the double
jeopardy clause “protects only against the imposition of multiple criminal punishments for
the same offense.” Hudson v. United States, 522 U.S. 93, 99 (1997). Immigration detention
is not a criminal punishment, and the double jeopardy clause simply has no application here.
Any claim based on the double jeopardy clause is dismissed.
The petition also makes numerous allegations about the treatment of individuals from
“AMMMLACCC” countries during removal proceedings. To the extent these allegations are
indirect attacks on the validity of Petitioner’s removal order, this Court lacks jurisdiction to
hear any such claim, and it is dismissed without prejudice. See Delgado, 643 F.3d at 55.
To the extent these allegations are meant to support a claim that Petitioner’s current
detention is the result of discriminatory animus in violation of the equal protection clause, he
has failed to state a viable claim. Petitioner has not alleged any facts supporting the
conclusion that he personally was detained based on his membership in a protected category.
Instead, Petitioner has made broad allegations that individuals from “AMMMLACCC”
countries are disproportionately detained.

This category was seemingly invented by

Petitioner and is, as Respondent notes, “a confusing mixture of people organized by political
structure in one case (i.e., Communist Controlled), religion in another case (i.e., Majority
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Muslim), or simply location in other cases (e.g., Mexico, or the Caribbean).” (Dkt. 21-1 at
13). Petitioner has not demonstrated that having heritage from an “AMMMLACCC” country
is a cognizable protected category.
Nor has he alleged any facts supporting the conclusion that it was discriminatory
animus and not his own individual circumstances that caused him to be detained pending
removal. Petitioner was provided with specific reasons for his detention (see, e.g., Dkt. 21-3
at 27), and he has not plausibly alleged that similarly situated individuals—including
individuals with similar criminal histories—were not detained. See Brown v. City of Oneonta,
New York, 221 F.3d 329, 337 (2d Cir. 2000) (“[I]f a plaintiff seeks to prove selective
prosecution on the basis of his race, he must show that similarly situated individuals of a
different race were not prosecuted.” (quotation omitted)). Plaintiff’s claim that his detention
violates the equal protection clause is thus subject to dismissal. See generally McFarland v.
Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to dismiss summarily any
habeas petition that appears legally insufficient on its face[.]”).
Finally, Petitioner has made a number of allegations regarding alleged misconduct by
government lawyers and officials in other immigration proceedings before this Court. (See
Dkt. 1 at 21-34). Petitioner has failed to tie these allegations to his own claims, nor do they
support a cognizable claim that Petitioner could assert on his own behalf. To the extent
Petitioner is trying to assert a claim based on these allegations, it is dismissed.
B.

Prolonged Detention Claim

The Court does have jurisdiction over Petitioner’s challenge to his ongoing detention
pending removal. Petitioner is detained pursuant to 8 U.S.C. § 1231, which governs detention
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of individuals subject to a final order of removal. See Johnson v. Guzman Chavez, 594 U.S.
523, 534 (2021).
When an immigration judge enters a final order of removal against an individual, “the
Government ordinarily secures the alien’s removal during a subsequent 90-day statutory
‘removal period,’ during which time the alien normally is held in custody.” See Zadvydas v.
Davis, 533 U.S. 678, 682 (2001); see also Wang v. Ashcroft, 320 F.3d 130, 145 (2d Cir. 2003)
(“[d]uring the [90-day] removal period” under § 1231, “the Attorney General shall detain the
alien”). The removal period begins on the latest of: (1) the date the removal order becomes
administratively final; (2) “[i]f 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”; or (3) the date the alien
is released from detention or confinement, unless such detention or confinement is the result
of an immigration process. 8 U.S.C. § 1231(a)(1)(B).
After expiration of the 90-day removal period, 8 U.S.C. § 1231(a)(6) allows the
government to continue to detain certain classes of aliens or to release them, subject to
appropriate terms of supervision. Id. In Zadvydas, the Supreme Court read “an implicit
limitation into” § 1231(a)(6), holding that “the statute, read in light of the Constitution’s
demands, 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. The Zadvydas Court further adopted a 6-month “presumptively
reasonable period of detention,” and instructed that “[a]fter 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
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that showing.” Id. at 701; see also Wang, 320 F.3d at 146 (“The [Zadvydas] Court stated that
detention is presumptively reasonable for six months following a final removal order, and
that, after the first six months, detention violates § 241 if (1) an alien demonstrates that there
is no significant likelihood of removal in the reasonably foreseeable future and (2) the
government is unable to rebut this showing.”).
Here, Petitioner’s order of removal became administratively final on December 12,
2023, when his appeal was dismissed by the BIA. See 8 C.F.R. § 1241.1(a). The petition was
thus filed within the presumptively reasonable period of detention identified by the Zadvydas
court. However, that presumptively reasonable period of detention may have now expired
(although it also may not have, as discussed further below). Thus, while Petitioner’s
prolonged detention claim was premature in April 2024 (when the motion to dismiss was
filed), the Court cannot reach that conclusion now on the record before it.
The Court notes that there may well be legally justifiable reasons why Petitioner has
not yet been removed to Senegal. In particular, the record before the Court indicates that
Petitioner “refused to comply with preparation of documentation, including refusing to have
his photo taken and stating that he will not assist in helping to acquire travel documents.”
(Dkt. 21-2 at ¶ 45). The removal period may be extended “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). The information before the Court is insufficient to allow the Court
to ascertain whether the removal period has been extended in this case.

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Accordingly, the Court will afford Respondent an opportunity to file a supplemental
brief, addressing specifically the following issues: (1) whether the removal period has been
extended in this case due to Petitioner’s failure to cooperate in obtaining travel documents;
and (2) if the removal period has not been extended, whether there is a significant likelihood
of removal in the reasonably foreseeable future. Petitioner will be permitted to respond to
this filing. However, Petitioner is cautioned that any future motions making arguments
and/or seeking relief that the Court has already considered and denied will be
summarily rejected.
CONCLUSION
For these reasons, the Court denies Petitioner’s pending motions. (Dkt. 12; Dkt. 13;
Dkt. 14; Dkt. 15; Dkt. 16; Dkt. 17; Dkt. 18; Dkt. 19; Dkt. 20). The Court denies Respondent’s
motion to dismiss (Dkt. 21) without prejudice as to Petitioner’s prolonged detention claim but
grants Respondent’s motion in all other respects. Respondent shall file a supplemental brief
as described above within 45 days of entry of this Decision and Order. Petitioner shall file
any response within 20 days of receipt of the supplemental brief.
SO ORDERED.
________________________________
_____________________________
_
_________
ELIZABETH
ELIZ
ZABETH A. WOLFORD
WOLFORD
Chief Judge
Juudge
United States District Court
Dated:

November 25, 2024
Rochester, New York

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