DonMartin v. Lowe

Filing 8

MEMORANDUM re Petition for Writ of Habeas Corpus filed by Anderson Enrique DonMartin 1 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 12/4/17. (ma)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANDERSON ENRIQUE
DONMARTIN,
Petitioner
vs.
CRAIG LOWE,
Respondent

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No. 1:17-CV-01766
(Judge Rambo)

MEMORANDUM
Currently before the Court is Petitioner Anderson Enrique DonMartin’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his
detention at the Pike County Correctional Facility, Lords Valley, Pennsylvania, in
the custody of the Department of Homeland Security (“DHS”), Immigration and
Customs Enforcement (“ICE”). Petitioner requests that this Court issue an order
immediately releasing him from ICE detention and also enter a preliminary and
permanent injunction, enjoining Respondent from further detention of Petitioner.
For the reasons that follow, the Court will deny the petition.
I.

Background
Petitioner, a citizen and native of Venezuela, has been in the custody of ICE

since March 21, 2017. (Doc. No. 1; Doc. No. 6 at 4.) Petitioner initially entered
the United States on October 30, 1966 as a Legal Permanent Resident. (Doc. No.
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6, Ex. 1, Notice of Revocation of Release; Ex. 2, Record of Deportable /
Inadmissible Alien.) Petitioner was convicted of Burglary in the 2nd Degree on
March 4, 1982 and of Burglary in the 3rd Degree on December 19, 1983. (Id. at
Ex. 1; Ex. 2 at 3-4.)
While incarcerated for Burglary, the former Immigration and Naturalization
Service (“INS”) issued an Order to Show Cause, charging Petitioner as deportable.
(Id. at Ex. 3.) On June 16, 1986, an immigration judge ordered Petitioner deported
from the United States to Venezuela. (Id. at Ex. 4, Immigration Judge’s Order.)
On February 23, 1987, the INS released Petitioner on an Order of Supervision, due
to complications with the Venezuelan consulate regarding the issuance of travel
documents. (Id. at Ex. 5; Ex. 2 at 3.) On March 27, 1989, Petitioner was again
convicted of Burglary in the 2nd Degree as well as Criminal Possession of Stolen
Property in the 5th Degree. (Id. at Ex. 1; Ex. 2 at 4.) On June 13, 1994, Petitioner
was convicted of Burglary, Terroristic Threats, and Simple Assault. (Id.) Then, on
August 22, 1994, Petitioner was convicted of Rape, Robbery, and Burglary. (Id.)
On July 1, 2016, during a routine criminal database check, ICE’s
Enforcement and Removal Operations (“ERO”), determined that Petitioner should
be returned to ICE custody and detained in order for ICE to enforce the June 16,
1986 final removal order. (Id. at Ex. 2 at 2, 5.) ERO revoked Petitioner’s 1987
Order of Supervision on March 20, 2017 and subsequently apprehended him on
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March 21, 2017, and placed him in immigration detention to await his removal.
(Id.) On July 3, 2017, ICE conducted a post order custody review and determined
that Petitioner should remain in custody until his removal. (Id. at Ex. 6,
Declaration of Michael Loesch, ERO Deportation Officer.)
ERO submitted a travel document request to the Venezuelan consulate on
March 28, 2017, and was notified by Headquarters ERO that the Venezuelan
government has agreed to issue a travel document of Petitioner. (Id.)
Petitioner’s habeas petition seeks release from confinement, arguing that his
detention has exceeded the six month presumptively reasonable time set forth in
Zadvydas v. Davis, 533 U.S. 678, 701 (2001). Respondent argues that because the
Venezuelan government has agreed to issue a travel document for Petitioner and
that it should arrive soon at ERO, Petitioner’s removal should occur in the very
near future. (Doc. No. 6 at 5.)
II.

Discussion
8 U.S.C. § 1231, INA § 241, governs detention after removal has become

certain. See Leslie v. Attorney Gen., 678 F.3d 265, 270 (3d Cir. 2012) (“the
purpose of § 1231 detention is to secure an alien pending the alien’s certain
removal”). Detention under § 1231 provides the Attorney General with ninety
days to remove an alien from the United States after an order of removal becomes
final. During this “removal period,” detention of the alien is mandatory. See 8
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U.S.C. § 1231(a)(2). If the alien has not been removed and remains in the United
States after the ninety day period, the alien’s detention may continue, or he may be
released under the supervision of the Attorney General. See 8 U.S.C. §§
1231(a)(3) and (6). Section 1231(a) allows ICE to detain an alien for a “reasonable
time” necessary to effectuate the alien’s deportation, but indefinite detention is not
authorized. See Zadvydas v. Davis, 533 U.S. 678 (2001) (six months is the
presumptively reasonable period of post-removal detention under § 1231(a),
however, 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).
Petitioner argues that his detention of just under eight (8) months violates his
due process. As set forth above, § 1231(a) does not authorize the Attorney General
to detain aliens indefinitely beyond the removal period, but “limits an alien’s postremoval-period detention to a period reasonably necessary to bring about the
alien’s removal from the United States.” Zadvydas, 533 U.S. at 689. “Once
removal is no longer reasonably foreseeable, continued detention is no longer
authorized by statute.” Id. at 699.
Petitioner has been detained in ICE custody since March 21, 2017. While
this detention has exceeded the six month period that is deemed presumptively
reasonable under Zadvydas, to obtain habeas relief, Petitioner must show that there
is no reasonable likelihood of actual removal in the reasonably foreseeable future.
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Id. at 701. The burden rests upon Petitioner to make this showing. Id.; see
Barenboy v. Attorney Gen. 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.’
”) (quoting Zadvydas, 533 U.S. at 701).
Here, Petitioner has not met his burden of proof to show that ICE will not be
able to remove him in the reasonably foreseeable future. In his petition and
traverse, Petitioner argues that despite his cooperative efforts to facilitate his
removal, he has not yet been removed. (Doc. No. 1 and 7.) However, Petitioner
does not provide any contrary evidence to Respondent’s assertion that the
Venezuelan government has agreed to issue a travel document for him and that it
should arrive to ERO soon. The basis of Petitioner’s argument appears to be that
his removal is unlikely because it has not yet occurred. (Id.) This argument,
however, falls short of presenting any “good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future.” Zadvydas,
533 U.S. at 702. Accordingly, Petitioner has not demonstrated that he is entitled to
relief under Zadvydas. See, e.g., Joseph v. United States, 127 F. App’x 79, 81 (3d
Cir. 2005) (affirming dismissal of § 2241 petition challenging detention pursuant
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to § 1231(a)(6) because petition did not provide “good reason” to believe there is
no likelihood of removal); Abdelrahman v. BICE’s Interim Field Office Director,
No. 05-CV-1916, 2005 WL 3320841, at *2 (M.D. Pa. Dec. 7, 2005) (noting that
“the fundamental basis of [the petitioner’s] argument appear[ed] to be that his
removal [was] unlikely simply because it [had] not occurred to this point.”).
Accordingly, the petition will be dismissed without prejudice to the filing of a new
§ 2241 petition in the event that Petitioner can provide evidence of good reason to
believe that there is no significant likelihood of his removal in the reasonably
foreseeable future.
III.

Conclusion

For the foregoing reasons, the habeas petition will be denied without
prejudice. An appropriate order follows.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: December 4, 2017

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