Togbe v. Attorney General USA
Filing
4
MEMORANDUM & ORDER granting motion to proceed IFP 3 , DENYING petition for writ of habeas corpus, directing ICE (as of date of this order) to treat petition as request for release under 8 CFR:241.13 & to provide ptnr w/ response to his request w/in 30 days, & directing Clrk of Ct to CLOSE case. (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 12/03/12. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PROSPER KORKU TOGBE, JR.,
Petitioner,
v.
ATTORNEY GENERAL OF THE
UNITED STATES,
Respondent
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:
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Civil Action No. 1:12-cv-2409
(Judge Conner)
MEMORANDUM
Prosper Korku Togbe (“Togbe”), presently a detainee of the Bureau of
Immigration and Customs Enforcement (“ICE”), incarcerated at the Pike County
Prison, Lords Valley, Pennsylvania, filed the instant emergency petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 on December 3, 2012 (Doc. 1) and
request for leave to file in forma pauperis (Doc. 2). 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
Togbe, a native of Liberia, entered the United States seeking asylum on or
about April 18, 2005. Since entering the United States, Togbe resided in Drexel
Hill, Pennsylvania. Togbe was convicted of theft by unlawful taking, and on
January 5, 2011, was sentenced to one and a half years to three years of probation,
to be served at his residence. (Doc. 1). On September 12, 2012,1 Togbe was released
to the custody of Immigration and Customs Enforcement (“ICE”). On May 21, 2012,
following a hearing, Togbe was found to be removable and an order of deportation
was issued. Togbe waived his right to appeal and the order of removal became
final. (Id.) Togbe filed the instant motion pursuant to 28 U.S.C. § 2241, challenging
his continued detention.
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
1
Togbe’s motion lists this date as September 12, 2013, but the court will
interpret this as a typographical error and construe the date as September 12, 2012.
2
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
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 three months, or refer the alien to the HQPDU or HQCMU2 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
2
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.).
3
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.
In the matter sub judice, the presumptively reasonable six month period
began running on May 21, 2012, the date Togbe’s removal order became
administratively final. The six month period has only recently expired, and Togbe
has not stated whether he has been served with a written decision ordering his
continued detention, or whether he has 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 will issue.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
Dated:
December 3, 2012
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PROSPER KORKU TOGBE, JR.,
Petitioner,
v.
ATTORNEY GENERAL OF THE
UNITED STATES,
Respondent
:
:
:
:
:
:
:
:
Civil Action No. 1:12-cv-2409
(Judge Conner)
ORDER
AND NOW, this 3rd day of December, 2012, upon consideration of the petition
for writ of habeas corpus (Doc. 1) and request for leave to file in forma pauperis, 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 Clerk of Court is directed to CLOSE this case.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
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