Komlanvi v. Nielsen et al
Filing
10
MEMORANDUM OPINION AND ORDER granting 6 MOTION to Dismiss 1 Petition for Writ of Habeas Corpus, dismissing with prejudice 1 Petition for Writ of Habeas Corpus. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
July 09, 2018
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EDOH KOMLANVI,
A#078765854,
David J. Bradley, Clerk
§
§
§
Petitioner,
§
§
§
§
§
§
§
v.
JEFF SESSIONS, United States
Attorney General, et al.,
Respondents.
CIVIL ACTION NO. H-18-1058
§
MEMORANDUM OPINION AND ORDER
The petitioner,
(A#078765854),
Edoh Komlanvi,
has filed a Petition for a Writ of Habeas Corpus
Pursuant to 28 U.S.C.
seeking
also known as Komlanvi Edoh
release
2241
§
("Petition")
from detention by
(Docket Entry No.
immigration
officials.
1),
Now
pending before the court is Respondents' Motion to Dismiss pursuant
to
Rules
Procedure
12 (b) (1)
and
12 (b) (6)
("Respondents'
Motion")
petitioner has not filed a
expired.
law,
of
the
Federal
(Docket
Entry
Rules
of
Civil
No.
6) .
The
response and his time to do so has
After considering all of the pleadings and the applicable
the court will grant Respondents'
action for the reasons explained below.
Motion and dismiss this
I .
Background
The petitioner is a native and citizen of Togo, West Africa. 1
He was taken into custody by Immigration and Customs Enforcement
("ICE") on March 1, 2017, after serving an 11-year prison sentence
in the Texas
records
( "TDCJ") . 2
Department of Criminal Justice
reflect
that
the
petitioner
received
following a conviction for sexual assault.
this
Public
sentence
See Edoh v. State, 245
S.W.3d 606 (Tex. App. -Houston [1st Dist] 2007, no pet.).
While
in custody of TDCJ, the petitioner was ordered removed following a
hearing before
an
immigration
judge. 3
He
has
remained
in
ICE
custody since his release from prison.
On April 4, 2018, the petitioner filed his Petition for habeas
corpus relief under 28 U.S.C.
§
2241, arguing that he is entitled
to release from custody on the grounds that immigration officials
have failed to effect his removal within a reasonable time. 4
petitioner relies on Zadvydas v.
which
requires
an
Davis,
121 S.
immigration detainee's
Ct.
release
The
2491
(2001),
under
certain
circumstances, aft€r the expiration of a presumptively reasonable
1
Petition, Docket Entry No. 1, p. 3
2
Id. at 3-4
~
~
11.
11.
3
Id.; see also Declaration of Deportation Officer Christopher
Bacchus ("Bacchus Declaration"), Docket Entry No. 6-1, p. 1.
4
Petition, Docket Entry No. 1, pp. 4-5
-2-
~~
16-18.
six-month
period
of
detention,
where
there
is
no
prospect
of
removal in the foreseeable future.
Exhibits provided by petitioner reflect that his detention has
been continued because of his criminal record.
have
supplemented
the
record
with
5
The respondents
information
showing
that
officials are working with the Ambassador of Togo to procure a
travel document for his removal.
6
Arguing that the petitioner's
removal is foreseeable, the respondents maintain that his continued
detention is
not
unreasonable or unconstitutional
and that
the
Petition should be dismissed for failure to state a claim. 7
II.
Standards of Review
By Act of Congress, "[w]rits of habeas corpus may be granted
by the Supreme Court, any justice thereof, the district courts and
,
any circuit judge within their respective jurisdictions .
28 U.S.C.
§
2241(a).
The writ of habeas corpus is available to an
individual who can demonstrate that he is "in custody in violation
of the Constitution or laws or treaties of the United States."
U.S.C.
§
grounds
2241(c) (3)
that
his
28
The petitioner seeks habeas relief on the
continued
detention
while
awaiting
removal
violates due process.
5
Decision to Continue Detention, Docket Entry No. 1, p. 20.
6
Bacchus Declaration, Docket Entry No.
6-1, p. 1.
7
Respondents' Motion, Docket Entry No.
6, pp. 4-9.
-3-
The respondents invoke both Rule 12(b) (1) of the Federal Rules
of Civil Procedure, which authorizes dismissal for lack of subject
matter jurisdiction, and Rule 12(b) (6), arguing that the petition
fails to state a claim upon which relief may be granted.
Motions
to dismiss under Rule 12 (b) ( 6) are appropriate where a complaint or
petition fails to allege facts which, accepted as true, show that
the pleader articulates a plausible claim for the relief sought.
See,
~'
(2007).
Bell Atlantic Corp. v. Twombly,
127 S. Ct. 1955, 1965
Although review under Rule 12 (b) ( 6) is typically confined
to the contents of the pleadings, a court may consider documents
incorporated by reference into the complaint.
See Tellabs Inc. v.
Makor Issues & Rights, Ltd., 127 S. Ct. 2499, 2509 (2007).
A court
may also consider documents attached to a motion to dismiss.
Collins v. Morgan Stanley Dean Witter,
Cir.
2000).
The
Fifth
Circuit
224 F.3d 496,
has
clarified
See
498-99
that
(5th
"such
consideration is limited to documents that are referred to in the
plaintiff's complaint and are central to the plaintiff's claim."
Scanlan v.
Tex.
A&M Univ.,
343
F.3d
533,
536
(5th Cir.
2003)
(citing Collins, 224 F.3d at 498-99).
III.
Once
a
removal
typically has
United States.
90
order
days
Discussion
becomes
to effect
8 U.S.C.
§
final
the
an alien's
Attorney
departure
1231 (a) (1); Andrade v.
F.3d 538, 543 (5th Cir. 2006).
General
from the
Gonzales,
459
Aliens may be detained during the
-4-
removal period.
See 8 U.S.C. § 1231 (a) (2).
If the alien is not
promptly deported within the removal period, he may be eligible for
supervised release until removal can be accomplished. See id. at
§
1231(a) (3).
An alien may be detained beyond the removal period
if he is a risk to the community or he is unlikely to comply with
the removal order if released.
In Zadvydas v.
Davis,
See id. at § 12 31 (a) ( 6) .
121 S. Ct.
2491,
2504-05
(2001),
the
Supreme Court held that the Constitution does not permit indefinite
detention lasting beyond six months past the 90-day removal period.
After the expiration of six months, an alien may seek his release
from custody by demonstrating a "good reason to believe that there
is
no
significant
likelihood
of
removal
foreseeable future[.]" Id. at 2505.
in
the
reasonably
The alien bears the burden of
proof in showing that no such likelihood of removal exists.
If
the
alien
makes
this
showing,
the
burden
shifts
to
Id.
the
government, which "must respond with evidence sufficient to rebut
that showing."
Id.
Not every alien in custody will be entitled to
automatic release after the expiration of the
under the scheme announced in Zadvydas.
six-month period
"To the contrary, an alien
may be held in confinement until it has been determined that there
is
no
significant
foreseeable future."
likelihood
of
removal
in
the
reasonably
Id.
The petitioner has not met his initial burden of showing that
there is no significant likelihood of removal in the foreseeable
future
because
exhibits
attached
-5-
to
the
Petition
reflect
that
immigration officials are working with the government of Togo to
procure the necessary travel documents.
The petitioner's continued
detention is justified, moreover, by his criminal record.
U.S.C.
§
1231(a) (6).
See 8
The petitioner has therefore failed to show
that his continued detention violates the holding in Zadvydas or
the Constitution.
See Andrade,
459 F.3d at 543-44
(stating that
conclusory statements are insufficient to meet an alien's burden of
proof under Zadvydas or to demonstrate a constitutional violation
in connection with his continued detention).
Accordingly,
the
Petition will be denied and this action will be dismissed.
IV.
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
1.
Respondent's Motion to Dismiss (Docket Entry No. 6)
is GRANTED.
2.
The Petition for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 filed by Edoh Komlanvi (Docket
Entry No. 1) is DENIED and this action will be
dismissed with prejudice.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this 9th day of July, 2018.
UNITED
-6-
LAKE
DISTRICT JUDGE
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