Ollaigbe v. Attorney General et al

Filing 9

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 8/19/16. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOHN OLATUNDE OLLAIGBE

:

Petitioner

:

v

CIVIL ACTION NO. 3:16-556

:
(JUDGE MANNION)

BUREAU OF IMMIGRATION AND,
CUSTOMS ENFORCEMENT,

:
:

Respondents

MEMORANDUM
Petitioner, a detainee of Immigration and Customs Enforcement (“ICE”),
currently confined in the Pike County Prison, Lords Valley, Pennsylvania, filed
the above captioned petition for writ of habeas corpus pursuant to 28 U.S.C.
§2241. Ollaigbe challenges his continued detention by ICE. A response (Doc. 6)
and traverse (Doc. 7) having been filed, the petition is ripe for disposition. For the
reasons set forth below, the petition will be dismissed, without prejudice, as
premature.

I. Background
Ollaigbe is a citizen and native of Nigeria. (Doc. 6-1 at 5). On May 10,
2005, he adjusted his status to Lawful Permanent Resident. Id.
On April 7, 2015, Immigration officials served Ollaigbe with a Notice to

Appear, charging him with being subject to removal from the United States based
upon his extensive criminal history of theft and fraud convictions, amassed while
in the United States. Id. The Notice to Appear advised Ollaigbe that as the result
of these criminal convictions, he was subject to removal pursuant to Section
237(a)(2)(A)(ii) of the Immigration and Nationality Act (INA). Id.
In a Decision and Order dated September 23, 2015, the Immigration Judge
ordered that Ollaigbe’s application for adjustment of status with a waiver of
inadmissibility pursuant to section 212(h) of the INA be denied and he is to be
removed from the United States to Nigeria. (Doc. 6-1, at 6-18). Ollaigbe
appealed this decision to the Board of Immigration Appeals, who on December
3, 2015, dismissed his appeal. (Doc. 6-1 at 19-23).
On December 28, 2015, Ollaigbe filed a Petition for Review and a
temporary stay of removal was granted. Ollaigbe v. Att’y Gen., 15-4057 (3d Cir.
2016.) On April 11, 2016, the Third Circuit dismissed the petition and denied
Ollaigbe’s stay of removal. Id. As such, Petitioner’s removal order became final
on that date.
On April 1, 2016, Petitioner filed the instant petition for writ of habeas
corpus, challenging his continued detention pursuant to Zadvydas v. Davis, 533
U.S. 678 (2001). (Doc. 1). For relief, Petitioner seeks immediate release from his

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continued detention. (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 90
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) specifically provides:
The removal period begins to run on the latest of the following:
(I) The date the
administratively final.

order

of

removal

becomes

(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.
At the conclusion of the 90 day period, the alien may be held in continued
detention, or may be released under continued supervision. 8 U.S.C.
§§1231(a)(3) and (6).
In Zadvydas v. Davis, 533 U.S. 678 (2001), the United States Supreme
Court addressed the issue of whether §1231(a)(6) authorizes the Attorney
General to detain a removable alien indefinitely beyond the 90 day removal
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period or only for a period reasonably necessary to effectuate the alien’s
deportation. Reasoning that the indefinite detention of aliens “would raise serious
constitutional concerns,” the Court concluded that 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.” Id. at 2498. The Court asserted that “once removal is no longer
reasonably foreseeable, continued detention is no longer authorized by statute.”
Id. at 2503. To establish uniformity in the federal courts, the Court recognized six
(6) months as a “presumptively reasonable period of detention.” Id. at 2505. The
Court further directed that if the alien provides good reason to believe that there
is no significant likelihood of deportation in the reasonably foreseeable future at
the conclusion of the six (6) month period, the burden shifts to the government
to “respond with evidence sufficient to rebut that showing.” Id. The Court stated
that not every alien must be released after six (6) months; but, rather, an alien
may still be detained beyond six (6) months “until it has been determined that
there is no significant likelihood of removal in the reasonably foreseeable future.”
Following the Supreme Court’s decision in Zadvydas, regulations have
been promulgated to meet the criteria established by the Supreme Court. See
8 C.F.R. §241.4. Prior to the expiration of the 90 day removal period, the district
director shall conduct a custody review for an alien where the alien’s removal,
while proper, cannot be accomplished during the prescribed period. 8 C.F.R.
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§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 Head Quarters Post-order Detention Unit (HQPDU) for
further custody review. 8 C.F.R. §241.4(k)(1)(ii).
Ollaigbe’s order of removal became final on April 11, 2016, when his
Petition for Review was dismissed by the United States Court of Appeals for the
Third Circuit. Initially, the court notes that Ollaigbe filed the instant action on April
1, 2016, ten days prior to his order of removal becoming final. As such, any claim
regarding prolonged detention prior to his removal order is dismissed as moot.
Moreover, any challenge to his post-order detention is premature, as a petition
filed before the expiration date of the presumptively reasonable six months
detention is properly dismissed. See Zadvydas, 533 U.S. at 701; Akinwale v.
Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002) (“this six-month period thus must
have expired at the time [petitioner's] §2241 petition was filed in order to state a
claim under Zadvydas”). As the petition was filed prematurely, there is no need
for the court to examine whether Petitioner has established “that there is no
significant likelihood of [his] removal in the reasonably foreseeable future.”
Zadvydas, 533 U.S. at 701, 121. S.Ct. at 2505. Thus, the petition will be
dismissed, without prejudice, as Petitioner is prematurely before the Court.

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A separate Order will be issued.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: August 19, 2016
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-0556-01.wpd

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