Johnson v. Lowe
Filing
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MEMORANDUM (Order to follow as separate docket entry) (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
OWEN JOHNSON,
Petitioner,
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v.
CRAIG A. LOWE,
Respondent.
1:17-cv-0768
Hon. John E. Jones III
MEMORANDUM
May 3, 2017
Owen Johnson (“Johnson”), presently a detainee of the United States
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 2, 2017. (Doc. 1). Preliminary
review of the petition has been undertaken, see R. GOVERNING § 2254 CASES R. 4
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
Johnson is a native and citizen of Jamaica who indicates that he was taken
into ICE custody on October 28, 2016. (Doc. 1, p. 2). He received a decision to
continue detention after the expiration of ninety days. (Id.) He alleges that his
“continued detention while awaiting [his] removal violates 8 U.S.C. 1231(a)(6) due
process to lack of a significant likelihood of removal in the reasonable foreseeable
future as required by Zadvydas v. Davis, 533 U.S. 678….” (Doc. 1, p. 2). He filed
the instant petition seeking an order compelling his release. (Id.)
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
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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 up to three months, or refer the alien to the Headquarters Post
Order Detention Unit (“HQPDU”) 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 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
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“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 October 28, 2016, the date Johnson was taken into ICE custody.
The six month period has recently expired, and ICE has failed to remove Johnson.
Jurisdiction to make a determination concerning his custody would now lie with
the HQPDU. There is no indication that he submitted a written request for release
asserting the basis for his 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).
Consequently, ICE will be ordered to treat this petition as a request for release
under 8 C.F.R. §241.13.
III.
CONCLUSION
Based on the foregoing, the petition for writ of habeas corpus will be denied
without prejudice.
An appropriate Order follows.
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