Myles-Barnes v. Lowe et al
Filing
7
MEMORANDUM re Petition for Writ of Habeas Corpus 1 (Order to follow as separate docket entry)Signed by Chief Judge Christopher C. Conner on 10/30/14. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CLEVELAND MYLES-BARNES,
:
:
Petitioner
:
:
v.
:
:
CRAIG LOWE, Warden, Pike County :
Prison, CHARLES JOHNSON,
:
Secretary,U.S. Department of
:
Homeland Security, THOMAS
:
DECKER, Director, U.S.
:
Immigration and Customs
:
Enforcement, Philadelphia Field
:
Office,
:
:
Respondents
:
CIVIL NO. 1:14-CV-1685
(Chief Judge Conner)
MEMORANDUM
Petitioner Cleveland Myles-Barnes (“petitioner”), presently a detainee of the
Department of Homeland Security, 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 August
28, 2014, challenging the lawfulness of his continued detention. (Doc. 1). The
petition is ripe for disposition and, for the reasons set forth below, will be dismissed
without prejudice.
I.
Background
Petitioner, a native and citizen of Jamaica, illegally entered the United States
at an unknown location on an unknown date. (Doc. 1, p. 18). On October 5, 2007, he
pled guilty in the United States District Court, Northern District of Texas, to False
Representation of Citizenship in violation of 18 U.S.C. § 911. (Doc. 6-1, p. 2). He
was sentenced to an eight month term of imprisonment. (Id.) On August 29, 2013,
he was apprised via a Notice to Appear that he was subject to removal pursuant to
212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), as amended, as an
alien present in the United States without being admitted or paroled, and Section
212(a)(6)(C)(ii) of the INA, as an alien who falsely represents, or has falsely
represented himself to be a citizen of the United States for purpose or benefit under
the INA or any other federal or state law. (Doc. 1, pp. 18-19). On September 23,
2013, he was ordered removed to Jamaica. (Id. at 16).
On December 12, 2013, ICE reviewed petitioner‟s custodial status and issued
a decision to continue his detention based on the expectation that the Jamaican
Consulate would issue a travel document in the foreseeable future, as well as the
determination, based on his criminal history of drug convictions and false claims,
that he was a danger to the community and a flight risk. (Doc. 1, p. 29).
In April and July, 2014, the Department of Homeland Security‟s
Headquarters Custody Management Unit in Washington D.C., reviewed petitioner‟s
custodial status and concluded that, because the Jamaican government had not
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denied issuance of a travel document, his removal was expected to occur in the
reasonably foreseeable future. (Id. at 30-31).
The instant petition was filed on August 28, 2014.
II.
Discussion
A habeas petition may be brought by a prisoner who seeks to challenge either
the fact or duration of his confinement, as is the case here. Preiser v. Rodriguez,
411 U.S. 475, 494 (1973); Tedford v. Hepting, 990 F.2d 745, 748 (3d Cir. 1993).
Clearly, a habeas corpus petition is the appropriate vehicle to obtain the relief
petitioner seeks.
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). In Zadvydas v. Davis, 533 U.S. 678, 689 (2001), the Supreme Court
concluded that the statute “limits an alien‟s post-removal-period detention to a
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period reasonably necessary to bring about the alien‟s removal from the United
States. It does not permit indefinite detention.” Id. at 699. “Once removal is no
longer reasonably foreseeable, continued detention is no longer authorized by
statute.” Id. To establish uniformity in the federal courts, a period of six months
was recognized as a “presumptively reasonable period of detention.”1 Id. at 701.
Petitioner was taken into ICE custody pursuant to a final order of removal on
September 23, 2013, and the six-month presumptively reasonable period of postremoval-period detention expired on or about March 23, 2014. However, the
Zadvydas Court emphasized that “[t]his 6–month presumption [ ] does not mean
that every alien not removed must be released after six months.” Zadvydas, 533
U.S. at 701. Rather, the Supreme Court explained that, to state a claim for habeas
relief under § 2241, an alien must provide in the petition good reason to believe that
his or her removal is not foreseeable. Id. If at the conclusion of the six-month
period the alien provides good reason to believe that there is no significant
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 Headquarters
Custody Management Unit 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 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).
Petitioner‟s custody was reviewed by the Headquarters Custody Management Unit
in April and July 2014.
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likelihood of removal in the reasonably foreseeable future, the burden shifts to the
government to “respond with evidence sufficient to rebut that showing.” Id., at 701.
In the absence of factual allegations supporting the conclusion that removal is not
reasonably foreseeable, ICE does not have to respond by showing that removal is
reasonably foreseeable. Id. ; see also Barenboy v. Attorney General of U.S., 160 F.
App‟x 258, 261 n. 2 (3d Cir. 2005) (“Once the six-month period has passed, the
burden is on the alien to provide[ ] good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future. Only then
does the burden shift to the Government, which must respond with evidence
sufficient to rebut that showing”) (citation and internal quotation marks omitted).
Petitioner argues that despite his full cooperation, ICE has not been able to
secure travel documents. (Doc. 1, p. 7). Specifically, “ICE has had a period that
dates back to September 23, 2013, to procure the needed travel document to remove
[him] from [the] United States but have[sic] not been successful. ICE has been in
contact and has been working with the government of Jamaica since September 23,
2013, as ordered by the I[mmigration] J[udge] and the Immigration Courts, and still
claims to be working with the same government to achieve the same required
documents without end in sight.” (Id. at 6).
Such conclusory statements are not evidence of a good reason to believe
there is no significant likelihood of removal in the reasonably foreseeable future.
Petitioner “has made no showing whatever that there is „no significant likelihood of
removal in the reasonably foreseeable future,‟ ” Encamacion–Mendez v. Attorney
General of U.S., 176 F. App‟x 251, 254 (3d Cir. 2006), and he has not otherwise
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shown that his detention is “in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3); see, e.g., Joseph v. United States, 127 F.
App‟x 79, 81 (3d Cir. 2005) (finding that “[u]nder Zadvydas, a petitioner must
provide „good reason‟ to believe there is no likelihood of removal, 533 U.S. at 701,
and Alva has failed to make that showing here.”); Soberanes v. Comfort, 388 F.3d
1305 (10th Cir. 2004) (affirming dismissal of § 2241 petition challenging detention
pursuant to § 1231(a)(6) where petitioner failed to provide good reason to believe
that there is no likelihood of removal); Akinwale v. Ashcroft, 287 F.3d 1050, 1052
(11th Cir. 2002) (concluding that “in order to state a claim under Zadvydas the alien
not only must show post-removal 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”). Because, at this time,
continued detention remains reasonable, it is constitutionally permissible. The
petition is therefore subject to dismissal.
However, ICE is cautioned that, although the current record does not
demonstrate that “there is no significant likelihood of removal in the reasonably
foreseeable future,” Zadvydas, 533 U.S. at 701, at some point in time, the inability of
ICE to remove petitioner to Jamaica may provide “good reason” to believe the
removal is unlikely to be carried out. “For detention to remain reasonable, as the
period for confinement grows, what counts as the „reasonably foreseeable future‟
conversely would have to shrink.” Id. The dismissal is therefore without prejudice
to the filing of a new § 2241 petition in the event that petitioner can provide
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evidence of good reason to believe that there is no significant likelihood of his
removal in the reasonably foreseeable future.
III.
Conclusion
Based on the foregoing, the petition for writ of habeas corpus will be
dismissed without prejudice.
An appropriate Order will issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:
October 30, 2014
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