Chris v. Lowe

Filing 10

MEMORANDUM (Order to follow as separate docket entry) re: 1 Petition for Writ of Habeas Corpus filed by Makanjira Chris. (See memo for complete details.) Signed by Chief Judge Christopher C. Conner on 10/10/17. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHRIS MAKANJIRA,
Petitioner
v.
CRAIG A. LOWE,
Respondent

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CIVIL NO. 1:17-CV-1522
(Chief Judge Conner)

MEMORANDUM
Petitioner Chris Makanjira (“petitioner”), presently a detainee of the Bureau
of Immigration and Customs Enforcement (“ICE”), incarcerated at the Pike County
Correctional Facility, Lords Valley, Pennsylvania, filed the instant petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241 on August 25, 2017. (Doc. 1). For the
reasons set forth below, the court will dismiss the petition as premature.
I.

Background
Petitioner, a native and citizen of Tanzania, entered the United States at an

unknown place and unknown time, without permission or parole by an immigration
officer. (Doc. 8-1, at 2, Record of Deportable/Inadmissible Alien). On August 30,
2016, petitioner was convicted in the United States District Court for the Eastern
District of Pennsylvania of conspiracy to distribute heroin, and was sentenced to
forty months of imprisonment. (Id. at 2-3). On February 24, 2017, petitioner was
charged with being subject to removal pursuant to § 237(a)(2)(A)(iii) of the
Immigration and Nationality Act (“INA”) as an alien convicted of an aggravated

felony. (Doc. 8-1, at 5, Notice of Intent to Issue a Final Administrative Removal
Order).
On March 27, 2017, petitioner was ordered removed to Tanzania pursuant to
§ 237(a)(2)(A)(iii) of INA. (Doc. 8-1, at 8, Final Administrative Removal Order).
Petitioner requested withholding or deferral of removal under the Convention
Against Torture, but subsequently withdrew his request. (Doc. 8-1, at 9, Withdrawal
of Request for Reasonable Fear Determination).
On June 16, 2017, ICE issued a decision to continue custody. (Doc. 8-1, at 10,
Decision to Continue Detention). Therein, petitioner was notified that ICE was
working to obtain travel documents and that he was to remain in ICE custody
pending removal from the United States. (Id.) He was further notified that “[i]f you
have not been released or removed from the United Stated by September 23, 2017,
jurisdiction of the custody decision in you case will be transferred to the
Headquarters Post Order Unit (HQ POCRU) . . . HQ POCRU will make a final
determination regarding your custody.” (Id. at 10-11).
On August 25, 2017, petitioner filed the instant petition requesting review of
the lawfulness of his continued detention. (Doc. 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:
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(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
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
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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.
In the matter sub judice, the presumptively reasonable six-month period has
not yet expired. Petitioner’s order of removal became final on April 26, 2017, when
he failed to file an appeal of the Immigration Judge’s decision to the Board of
Immigration Appeals within thirty (30) days after the Immigration Judge’s decision.
See 8 U.S.C § 1252(b)(1) (“The petition for review must be filed not later than 30
days after the date of the final order of removal.”). Therefore, the ninety-day
mandatory detention period expired on or about July 25, 2017. At that point, the
presumptively reasonable six-month period established by Zadvydas began to run
and will expire on or about January 25, 2018. All indications are that jurisdiction to

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make a determination concerning his custody would now lie with the HQPDU. See
(Doc. 8-1, at 10-11, Decision to Continue Detention). Because the six-month period
established by the Supreme Court has not expired, the petition, filed on August 25,
2017, is prematurely before the court.
III.

Conclusion
Based on the foregoing, the petition for writ of habeas corpus will be

dismissed without prejudice.
An appropriate order follows.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:

October 10, 2017