Singh v. Holder et al

Filing 5

MEMORANDUM AND ORDER re: petition for writ of habeas corpus 1 - It is hereby ORDERED that: 1. Motion to proceed IFP 3 GRANTED.; 2. Petition for writ of habeas corpus DENIED.; 3. As of date of this order ICE shall treat petition for writ of habeas corpus as request for release under 8 CFR 241.13 - ICE shall provide petitioner w/ response to his request w/in 30 days.; 4. Motin to appt cnsl 2 DENIED.; 5. Clrk of Ct directed to CLOSE case. (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 05/23/11. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MALKEET SINGH,
Petitioner
v.
ERIC HOLDER, ATTORNEY
GENERAL, et al.,
Respondents

:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO. 1:11-CV-0950
(Judge Conner)

MEMORANDUM
Malkeet Singh (“Singh”), presently a detainee of the Bureau of Immigration
and Customs Enforcement (“ICE”), incarcerated at the Pike County Prison, Lords
Valley, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to
28 U.S.C. §2241 on May 18, 2011. (Doc. 1). Preliminary review of the petition has
been undertaken, see R. GOVERNING § 2254 CASES R.1(b) (applicable to petitions
under 28 U.S.C. § 2241 in the discretion of the court), and, for the reasons set forth
below, the petition will be referred to ICE as a request for review under 8 C.F.R.
§ 241.13.
I.

Background
Singh, a native and citizen of India, entered the United States as a visitor on

October 6, 1998, at New York, New York. (Doc. 1, at 16.) He was convicted of
multiple crimes including, Fraudulent Use of Credit Cards, which resulted in his
placement in removal proceedings. (Id.) On August 14, 2006, he was granted

voluntary departure by an Immigration Judge (“IJ”). (Id.) He has filed “multiple
appeals, motions, and/or petitions contesting the IJ’s ruling; all have been either
dismissed or denied.” (Id.) According to Singh, his removal order, which was
entered on June 3, 2010, became final on September 27, 2010, at the conclusion of
his Bureau of Immigrations Appeal proceeding. (Doc. 1, at ¶ 23.)
ICE first reviewed his custody status on or about November 30, 2010,
pursuant to review procedures found at 8 C.F.R. § 241.4. (Doc. 1, at 20.) ICE
continued his detention because he presented a threat to society and it was not
“clearly evident” that he would appear for removal as required. (Id.) He was
further advised that if he was not released or removed from the United States by
March 23, 2011, jurisdiction of the custody decision would be transferred to the
Headquarters Post Order Detention Unit (“HQPDU”). (Id. at 21.)
He was neither released nor removed by March 23, 2011. Consequently,
jurisdiction transferred to the Headquarters Case Management Unit (“HQCMU”)1
and a second custody review was conducted. On April 4, 2011, a decision to
continue custody was issued and he was informed that his removal to India was
expected to occur in the reasonably foreseeable future. (Doc. 1, at 16.) He was also

The HQCMU is on the same administrative level and performs the same
custody reviews as the Headquarters Post Order Detention Unit (“HQPDU”). See
Tung Thanh Hoang v. Decker, Civil No. 3-CV-08-1748, 2008 WL 4793734, *3
(M.D.Pa. Oct. 31, 2008) (Vanaskie, J.).
1

2

informed that the decision “does not preclude him from bringing forth evidence in
the future to demonstrate a good reason why [his] removal is unlikely.” (Id.)
Singh filed the instant petition seeking relief from “continued unlawful
detention.” (Doc. 1, at 1.)
II.

Discussion
Detention, release, and removal of aliens ordered removed is governed by the

provisions of 8 U.S.C. § 1231. Under § 1231(a), the Attorney General has ninety days
to remove an alien from the United States after his order of removal, during which
time detention is mandatory. Section 1231(a)(1)(B) provides the following:
The removal period begins to run on the latest of the following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if the 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. At the conclusion of the ninety-day period, the alien may be held in
continued detention, or may be released under continued supervision. 8 U.S.C. §§
1231(a)(3) & ( 6). The statute “limits an alien’s post-removal-period detention to a
period reasonably necessary to bring about the alien’s removal from the United
States. It does not permit indefinite detention.” Zadvydas v. Davis, 533 U.S. 678,
689 (2001). “Once removal is no longer reasonably foreseeable, continued detention
is no longer authorized by statute.” Id. at 699. To establish uniformity in the

3

federal courts, a period of six months was recognized as a “presumptively
reasonable period of detention.” Id. at 701.
Following Zadvydas, regulations were promulgated to meet the criteria
established by the Supreme Court. See 8 C.F.R. § 241.4. Prior to the expiration of
the mandatory ninety-day removal period, the district director shall conduct a
custody review for an alien where the alien’s removal cannot be accomplished
during the prescribed period. 8 C.F.R. § 241.4(k)(1)(I). When release is denied
pending the removal, the district director may retain responsibility for custody
determinations for up to three months, or refer the alien to the HQPDU or HQCMU
for further custody review. 8 C.F.R. § 241.4(k)(1)(ii). Once jurisdiction is
transferred, an eligible alien may submit a written request for release to the
HQPDU or HQCMU asserting the basis for the alien’s belief that there is no
significant likelihood that he will be removed in the reasonably foreseeable future.
8 C.F.R. § 241.13(d)(1).
If at the conclusion of the six month period the alien provides good reason to
believe that there is no significant likelihood of deportation in the reasonably
foreseeable future, the burden shifts to the government to “respond with evidence
sufficient to rebut that showing.” Zadvydas, 533 U.S. at 701. Not every alien must
be released after six months. An alien may still be detained beyond six months
“until it has been determined that there is no significant likelihood of removal in
the reasonably foreseeable future.” Id.

4

In the matter sub judice, the presumptively reasonable six month period
began running on September 27, 2010, the date Singh’s removal order became
administratively final. At the conclusion of the mandatory detention period, he was
served with a written decision ordering his continued detention. The six month
period has recently expired, and the matter has been transferred to the HQCMU.
Although he recently received a custody review, it does not appear that he filed a
written request for release with the HQCMU. Consequently, ICE will be ordered to
treat this petition as a request for release under 8 C.F.R. §241.13.
An appropriate order accompanies this memorandum.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge

Dated:

May 23, 2011

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MALKEET SINGH,
Petitioner
v.
ERIC HOLDER, ATTORNEY
GENERAL, et al.,
Respondents

:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO. 1:11-CV-0950
(Judge Conner)

ORDER
AND NOW, this 23rd day of May, 2011, upon consideration of the petition for
writ of habeas corpus (Doc. 1), it is hereby ORDERED that:
1.

The motion to proceed in forma pauperis (Doc. 3) is GRANTED.

2.

The petition for writ of habeas corpus is DENIED.

3.

As of the date of this order, ICE shall treat the petition for writ of
habeas corpus as a request for release under 8 C.F.R. § 241.13. ICE
shall provide petitioner with a response to his request within thirty
days.

4.

The motion to appoint counsel (Doc. 2) is DENIED.

5.

The Clerk of Court is directed to CLOSE this case.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge