Faustov v. Napolitano

Filing 13

MEMORANDUM (Attachments: # 1 R&R)(eo)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
YURIY FAUSTOV,

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Petitioner,
v.
JANET NAPOLITANO, et al.,
Respondents.

CIVIL NO. 1:13-CV-1018
(Judge Jones)
(Magistrate Judge Carlson)

REPORT AND RECOMMENDATION
I.

Statement of Facts and of the Case

This case involves a habeas corpus petition filed by Yuriy Faustov, a native of
the Ukraine. While both the petitioner and the respondents allude in their pleadings
to prior contentious immigration proceedings in this matter,1 the scope of our review
of this case is bound and defined by a simple undisputed fact. Faustov became subject
to a final order of removal on February 28, 2013, when the petitioner permitted a grant

For his part, Faustov complains about a period of unreasonable delay in
obtaining a final removal order and argues, at length, the merits of his removal
claims. Respondents, in turn, detail a lengthy history of criminal misconduct by
Faustov and suggest that Faustov has criminally resisted removal. Given the
undisputed fact that Faustov is now subject to a final order of removal, we find it
unnecessary to delve into these competing factual narratives regarding what
transpired prior to the entry of this final removal order.
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of voluntary departure to expire, after Faustov failed to post a $500 bond or provide
a passport to immigration officials.
Since the entry of this final removal order some four months ago immigration
officials have been diligently seeking to remove Faustov, in the face of almost
constant resistence to removal by the petitioner. Thus, on March 5, 2013, immigration
officials performed a review of Faustov’s file based on his request for release. (Doc.
9, Ex. I, Memorandum on Request for Release.) At that time it was noted that Faustov
was under a final order of removal as of February 28, 2013, and, despite given
numerous opportunities to assist in obtaining a passport or travel documents, Faustov
had repeatedly failed to do so. (Id.) Accordingly, on March 7, 2013, Faustov was
placed by immigration officials on Failure to Comply status. (Id., Ex. H, Clark Decl.,
¶ 4.) On March 12, 2013, assistance was then requested from the immigration
headquarters travel document unit and the U.S. Department of State in an effort to
obtain travel documents for Faustov, since Faustov’s use of five different aliases in
prior consulate encounters had complicated this process. (Id. ¶ 5.) As part of these
efforts, on March 12, 2013, Faustov was provided an application for a travel document
and was advised to complete it; however, Faustov refused to fill out the application.
(Id. ¶ 6.) On March 27, 2013, Faustov was again presented a travel document

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application and was asked to complete it; however, Faustov again refused to complete
the document. (Id. ¶ 9.)
Despite Faustov’s resistence, immigration officials were able to secure travel
documents for the petitioner. On April 1, 2013, the Ukrainian consulate contacted
immigration officials and informed them that they were able to identify Faustov as a
Ukrainian citizen, with the name of Yuriy Skyba. (Id., ¶ 9.) The consulate then issued
a travel document for Faustov. (Id.)
Faustov was initially scheduled for removal on April 26, 2013; however, this
reservation was canceled at the airlines’ request due to the fact that they already had
one detainee booked on the flight and their policy was to only allow one detainee per
flight. (Id. ¶ 10.) The reservation was re-scheduled for May 8, 2013. (Id.) On May
8, 2013, Faustov was escorted to the flight, but physically resisted and threw himself
to the ground, rather than board the aircraft, stating that he did not have to leave the
United States because he had a pending habeas petition. (Id., ¶ 11.)
Faustov was again scheduled for removal on May 15, 2013; however, just prior
to his removal this effort was postponed because Faustov filed a complaint with
immigration officials alleging that he was assaulted by the officers who escorted him
to this May 8 removal attempt. (Id., ¶ 12.) Due to this outstanding complaint,
Faustov’s removal has been postponed until this claim can be investigated. (Id.) Once

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this investigation has been completed Faustov will be scheduled for removal. (Id. ¶
13.)
It is against this background that Faustov filed the instant petition in April 2013,
and a companion habeas corpus petition, both of which alleged that Faustov: (1) has
been in custody an unreasonable length of time without a bond hearing; (2) should not
be subjected to mandatory detention; (3) should be granted United States citizenship;
and (4) should not be removed to the Ukraine because he fears for his safety upon his
return. The respondents have now filed a response to this petition, (Doc. 9.), and
Faustov has filed a traverse, (Doc. 10.), repeating his claims relating both to his
current detention and to the ultimate merits of his claims contesting this removal.
Accordingly, this matter is now ripe for resolution.
Because we find that Faustov’s current post-removal detention is specifically
authorized by statute and falls well within the presumptively reasonable 6-month
period prescribed by the United States Supreme in Zadvydas v. Davis, 533 U.S. 678
(2001), we believe–at present–that Faustov’s continued detention is justified.
Accordingly, it is recommended that this petition be denied without prejudice.

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III.

Discussion
A.

Faustov’s Post-Removal Detention Does Not Yet Raise
Constitutional Concerns

In this case, Faustov’s order of removal became final on February 28, 2013. As
an alien under a final order of removal, Faustov’s detention is now governed by a set
of statutory and constitutional rules. First, by statute, aliens like Faustov, who are
subject to final removal orders, may be detained under 8 U.S.C. § 1231(a), which
directs the Attorney General to remove such aliens within 90 days of the entry of a
removal order. 8 U.S.C. § 1231(a)(1)(A). The statute then commands that “[d]uring
the removal period the Attorney General shall detain the alien.” 8 U.S.C. § 1231(a)(2).
For purposes of our analysis of any post-final order period of detention, this statutory
ninety-day “removal period” during which detention is mandatory begins on the date
the order of removal becomes administratively final. See 8 U.S.C. § 1231(a)(1)(B)(I).
In this case, Faustov has been held for approximately 110 days since his
removal order became administratively final. Of this brief period of detention, the
initial 90 days of detention were not only authorized by law, they were actually
compelled by the statute. 8 U.S.C. § 1231(a)(2). As for Faustov’s remaining, current,
brief term of post-removal detention, nothing about this on-going detention presently
violates the petitioner’s constitutional rights.

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For aliens awaiting removal, like the petitioner, the contours of those rights are
now defined by the United States Supreme Court’s decision in Zadvydas v. Davis, 533
U.S. 678 (2001). In Zadvydas, the United States Supreme Court extended due process
protections to aliens awaiting removal from the United States, while generally
sustaining the validity of the initial mandatory detention period for such aliens during
the ninety-day removal period prescribed by 8 U.S.C. § 1231(a)(1)(A). Beyond this
initial 90-day period the court concluded that: “we think it practically necessary to
recognize some presumptively reasonable period of detention.” Id. at 701.
The court then observed that:
While an argument can be made for confining any presumption to 90
days, we doubt that when Congress shortened the removal period to 90
days in 1996 it believed that all reasonably foreseeable removals could
be accomplished in that time. We do have reason to believe, however,
that Congress previously doubted the constitutionality of detention for
more than six months . . . . Consequently, for the sake of uniform
administration in the federal courts, we recognize that period. 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. at 701.

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Taken together, 8 U.S.C. § 1231(a)(1)(A) and Zadvydas create a statutory and
constitutional framework for protecting the rights of aliens who are detained pursuant
to administratively final removal orders. Under this framework, such aliens shall be
detained for the first 90 days of the removal period and further detention beyond this
90-day period will be presumed reasonable up to a period of 6 months, at which time
aliens subject to final removal orders must either be removed, or be given bail
consideration.
However, when calculating these detention periods for purposes of analyzing
post-removal delay claims brought by immigration detainees two principles must be
kept in mind. First, delays attributable to the recalcitrance of the immigration
detainee, and his refusal to cooperate with immigration officials, are not to be
considered by the courts in making these determinations regarding whether a detainee
has experienced excessive delays in deportation. Thus, where an alien refuses to
cooperate with the authorities in affecting his removal he cannot cite the delay in
removal which he caused as grounds for habeas relied. As this court has observed:
[A]n “alien cannot assert a viable constitutional claim when his indefinite
detention is due to his failure to cooperate with the INS's efforts to
remove him.” Pelich v. I.N.S., 329 F.3d 1057, 1061 (9th Cir.2003). In
[such] a case, the Court[s] determined that the continued detention of the
alien was due to his own conduct: . . . Thus, the [court] has interpreted
INA § 241(a)(1)(C) after Zadvydas to permit continued detention of a
removable alien “so long as the alien fails to cooperate fully and honestly
with officials to obtain travel documents.” Lema v. INS, 341 F.3d 853,
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857 (9th Cir.2003). Similarly, district courts to consider this issue ask
whether the petitioner has the “keys to his freedom,” Pelich, 329 F.3d at
1060, to determine whether he is preventing his own removal pursuant
to INA § 241(a)(1)(C). See, e.g., Clark v. Ashcroft, No. 03-3320, 2003
WL 22351953 at *3-4 (E.D.Pa. Sept. 16, 2003)(alien initially
misrepresented his country of origin, but later gave his true name and
identity; the government showed no evidence of non-cooperation since
that time); Rajigah v. Conway, 268 F.Supp.2d 159, 165-66
(E.D.N.Y.2003) (finding no bad faith failure to cooperate where alien
made truthful statements to Guyanese ambassador regarding his intent to
file another court action, which the government considered failure to
comply); Seretse-Khama v. Ashcroft, 215 F.Supp.2d 37, 51-53
(D.D.C.2002) (alien's truthful statements to Liberian officials that he did
not wish to return to Liberia did not amount to bad faith failure to
cooperate since it was not the reason for failure to issue travel
documents; rather, it was their concern for his lack of ties to that
country); Powell v. Ashcroft, 194 F.Supp.2d 209, 210 (E.D.N.Y.2002)
(repeated inconsistencies regarding alien's identity “demonstrably
hampered the INS in carrying out his removal”). Thus, this court must
carefully examine the record to determine petitioner's part in his
continued detention.
Abdel-Muhti v. Ashcroft, 314 F.Supp.2d 418, 427-28 (M.D.Pa.,2004).
In addition, cases construing Zadvydas recognize that the presumptively
reasonable six-month detention period described by the Supreme Court is just that–a
presumptively reasonable period of detention. It is not an ironclad time frame within
which aliens must be removed, or released. Moreover, echoing the Supreme Court’s
observation that “[t]his 6-month presumption, of course, does not mean that every
alien not removed must be released after six months,” id. at 701, courts have
concluded that an alien who has been held longer than six months awaiting removal

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still bears an initial burden of proof to secure release pending removal. In such
instances, “in order to state a claim under Zadvydas the alien not only must show postremoval order detention in excess of six months but also must provide evidence of a
good reason to believe that there is no significant likelihood of removal in the
reasonably foreseeable future.” Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir.
2002). See, e.g., Rodney v. Mukasey, 340 F. App’x 761, 764 (3d Cir. 2009);
Encarnacion-Mendez v. Attorney General, 176 F. App’x 251, 254 (3d Cir. 2006);
Joseph v. United States, 127 F. App’x 79, 81 (3d Cir. 2005). In instances where an
alien is unable to produce evidence demonstrating good cause to believe that there is
no significant likelihood of removal in the reasonably foreseeable future, courts have
frequently sustained continuing periods of detention pending removal well beyond the
six-month time frame described as presumptively reasonable by the Supreme Court
in Zadvydas, reasoning consistent with Zadvydas that: “[t]his 6-month presumption,
. . ., 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.”
Zadvydas, 533 U.S. at 701. See, e.g., Joseph v. United States, 127 F. App’x 79 (3d
Cir. 2005) (11 months); Sun v. Holder, No. 10-2186, 2010 WL 5391279 (M.D. Pa.
Dec. 22, 2010)(10 months); Joseph v. Lowe, No. 10-1222, 2010 WL 3835872 (M.D.

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Pa. Sept. 24, 2010) (10 months); Boyce v. Holder, 09-2254, 2010 WL 817482 (M.D.
Pa. March 9, 2010)(18 months); Robinson v. District Director, No. 09-637, 2009 WL
3366439 (M.D. Pa. Oct. 19, 2009) (1 year); Brown v. Attorney General, No. 09-313,
2009 WL 2225431 (M.D. Pa. July 23, 2009) (10 months); Aishrat v. Mukasey, No. 08786, 2008 WL 3071003 (M.D. Pa. Aug. 1, 2008) (10 months); Cyril v. Bureau of
Immigration and Customs Enforcement, No. 05-2658, 2006 WL 1313857 (M.D. Pa.
May 11, 2006) (10 months); Nma v. Ridge, 286 F.Supp.2d 469 (E.D.Pa. 2003)(11
months).
While this legal framework affords substantial protections to aliens, like
Faustov, who are subject to final removal orders, application of these legal standards
to this case provides no grounds for affording habeas relief to the petitioner at this
time. Faustov’s removal order became final on February 28, 2013. Thereafter, he
was subject to the first 90-day mandatory detention period set by statute, 8 U.S.C. §
1231(a)(2), and his post-removal detention falls well within the 6-month
presumptively reasonable time frame defined by the Supreme Court in Zadvydas.
Furthermore, given Faustov’s resistence to removal none of the post-removal delay in
this case can be attributed to the respondents. Instead, responsibility for that delay
appears to rest exclusively with Faustov. Finally, given the success of immigration

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officials in obtaining travel documents for Faustov, Faustov’s removal to the Ukraine
is now both likely and imminent.
On these facts we find that Faustov simply has not made a valid claim that he
has been subjected to an unconstitutionally excessive period of post-removal delay.
Indeed, far from being unconstitutionally excessive, the current post-removal
detention falls within periods sanctioned by statute and by the Supreme Court.
Therefore, this brief detention does not raise concerns of constitutional dimension
warranting habeas relief at this time. See Hendricks v. Reno, 221 F. App’x 131 (3d
Cir. 2007)(affirming denial of habeas petition where court found delay from date of
administratively final deportation order was less than 3 months).
Finally, in this petition Faustov invites us to re-visit and adjudicate issues
relating to the merits of his removal proceedings. This we cannot do. In cases like
this, where an immigration detainee is seeking a judicial finding that he should not be
removed from the United States, such a claim can only be brought through a petition
filed with the United States Court of Appeals. In 2005, Congress enacted the Real ID
Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, codified at 8 U.S.C. § 1252, which
eliminated the district courts’ habeas corpus jurisdiction over final removal orders in
almost all cases. This principle applies with particular and specific force to habeas

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corpus petitions by criminal aliens who wish to challenge their removal from the
United States on its merits, which is precisely what Faustov seeks to do in this case.
This issue was addressed by the United States Court of Appeals for the Third
Circuit in Jordon v. Attorney General of the United States, 424 F.3d 320 (3d Cir.
2005). In Jordon, the appellate court held that, under the REAL ID Act, such claims
could not be brought by habeas corpus petitions but rather must be presented to the
court of appeals. As the court of appeals observed:
Several provisions of 8 U.S.C. § 1252 (both pre- and post-REAL ID Act)
make the courts of appeals, not district courts, the first and often last
judicial arbiter of nationality claims . . . . The REAL ID Act, which
became law just days after argument in this case on May 11, 2005, allows
us to avoid the dense thicket of habeas jurisdiction over nationality
claims. The REAL ID Act amended 8 U.S.C. § 1252 in several pertinent
respects. First and foremost, it made petitions for review filed with the
court of appeals the “sole and exclusive means for judicial review of”
most orders of removal, including the order of removal at issue here. See
8 U.S.C. § 1252(a)(5) (1999 & Supp.2005); Bonhometre v. Gonzales,
414 F.3d 442, 445 (3d Cir.2005). In so doing, the Act expressly
eliminated district courts' habeas jurisdiction over removal orders. Id.;
see also Kamara v. Attorney General of the United States, 420 F.3d 202,
208 (3d Cir.2005). At the same time, the Act also enlarged our
jurisdiction, stating that none of its provisions “which limit [ ] or
eliminate [ ] judicial review, shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition for review
filed with an appropriate court of appeals in accordance with this
section.” 8 U.S.C. § 1252(a)(2)(D) (2005); Bonhometre, 414 F.3d at 445.
We have explained that this amendment evidences Congress's “intent to
restore judicial review of constitutional claims and questions of law
presented in petitions for review of final removal orders. This now
permits all aliens, including criminal aliens, to obtain review of
constitutional claims and questions of law upon filing of a petition for
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review with an appropriate court of appeals.” Papageorgiou v. Gonzales,
413 F.3d 356, 358 (3d Cir.2005).
Jordon v. Attorney General of United States, 424 F.3d 320, 326-27 (3d Cir. 2005).
See, e,g., Chuva v. Attorney General, 424 F. App’x 176 (3d Cir. 2011)(district court
properly dismissed habeas corpus petition which raised derivative citizenship claim,
in favor of REAL ID Act review by court of appeals); Perez v. Attorney General, 391
F. App’x 1000 (3d Cir. 2010)(appellate court review of derivative citizenship claim);
Rodrigues v. Attorney General, 321 F. App’x 166 (3d Cir. 2009)(same).
In sum, Faustov’s request to adjudicate claims of citizenship or other issues
relating to the merits of the removal order entered here fall beyond the habeas corpus
jurisdiction of this court. Instead, those claims must under the REAL ID Act be
addressed to the court of appeals. Therefore, to the extent that Faustov seeks to
contest the merits of this removal order it is recommended that the instant petition for
writ of habeas corpus be dismissed without prejudice to the filing of a proper petition
with the court of appeals.2

The parties mutually acknowledge that Faustov has filed such a petition
with the United States Court of Appeals for the Third Circuit which, to date, has
not deemed it necessary or appropriate to stay Faustov’s removal.
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IV.

Recommendation

For the foregoing reasons, upon consideration of this Petition for Writ of
Habeas Corpus, IT IS RECOMMENDED that the Petition be DENIED without
prejudice to renewal at such time, if any, that the delay and detention may become
unreasonable and excessive.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings,
recommendations or report addressing a motion or matter described in 28
U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition
of a prisoner case or a habeas corpus petition within fourteen (14) days
after being served with a copy thereof. Such party shall file with the
clerk of court, and serve on the magistrate judge and all parties, written
objections which shall specifically identify the portions of the proposed
findings, recommendations or report to which objection is made and the
basis for such objections. The briefing requirements set forth in Local
Rule 72.2 shall apply. A judge shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made and may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the
magistrate judge. The judge, however, need conduct a new hearing only
in his or her discretion or where required by law, and may consider the
record developed before the magistrate judge, making his or her own
determination on the basis of that record. The judge may also receive
further evidence, recall witnesses or recommit the matter to the
magistrate judge with instructions.
Submitted this 17th day of June 2013.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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