Tshiteya v. Crawford et al
Filing
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MEMORANDUM OPINION in re 1 PETITION for Writ of Habeas Corpus. Signed by District Judge James C. Cacheris on 12/16/2013. (Copy mailed to Pro Se Petitioner)(jlan)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
JEAN PAUL TSHITEYA
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Petitioner,
v.
JEFFREY CRAWFORD, et al.,
Respondents.
M E M O R A N D U M
1:13cv894 (JCC/IDD)
O P I N I O N
This matter is before the Court on Petitioner Jean
Paul Tshiteya’s (“Tshiteya” or “Petitioner”) Petition for Writ
of Habeas Corpus (the “Petition”) pursuant to 28 U.S.C. § 2241.
[Dkt. 1.]
For the following reasons, the Court will deny
Petitioner’s Motion.
I. Background
This case arises out of the detention by Immigration
and Customs Enforcement (“ICE”) of Petitioner Tshiteya.
A.
Factual Background
According to the Petition, Tshiteya is a native of
Belgium who the Department of Homeland Security (“DHS”) believes
to be a citizen of the Democratic Republic of the Congo (“DRC”).
(Pet. ¶ 13.)
Petitioner moved to the United States with his
family in 1984.
(Pet. ¶ 14.)
The Petition states that Tshiteya
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entered as a refugee or was granted asylum.
(Pet. ¶ 15.)
On
October 1, 1986, Petitioner became a lawful permanent resident.
(Gov’t Resp. Ex. 9 [Dkt. 5-1] Trump Decl. ¶ 5.)
Petitioner
alleges that since September 22, 2011, he has been in ICE
custody.
(Pet. ¶ 18.)
On January 18, 2012, an Immigration Judge (“IJ”)
ordered Petitioner be removed on grounds that he had been
convicted of a crime pursuant to Immigration and Nationality Act
(“INA”) § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
This section provides that an alien may be subject to removal
from the United States where he has been convicted of: (1) an
aggregated felony relating to commercial bribery,
counterfeiting, forgery or trafficking in vehicles the
identification numbers of which have been altered for which the
term of imprisonment is at least one year; (2) a crime of
violence for which the term of imprisonment ordered is at least
one year; (3) a theft offense for which a term of imprisonment
of at least one year was imposed.
3.)
(Pet. Ex. 1 [Dkt. 1-1] at 2-
Additionally, Petitioner was subject to removal pursuant to
INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), as an
alien convicted of two crimes involving moral turpitude not
arising out of a single scheme of criminal misconduct, and INA §
237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(B)(i) as an alien
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convicted of a controlled substance violation.
(Pet. Ex. 1 at
2.)
On June 12, 2012, the Board of Immigration Appeals
(“BIA”) denied Petitioner’s appeal and ordered him removed to
the DRC.
(Pet. ¶ 17.)
Petitioner timely filed a petition for
review with the United States Court of Appeals for the Fourth
Circuit.
(Gov’t. Resp. Ex. 7 [Dkt. 5-1].)
The Attorney General
moved the Fourth Circuit to remand the case to the BIA to allow
the BIA to: (1) consider a letter and evidence submitted by
Petitioner’s father alleging that Petitioner would be tortured
upon return to the DRC; and (2) to address the designation of
the country of removal.
(Id.)
The Fourth Circuit remanded the
case to the BIA noting that the Attorney General appeared to be
having “second thoughts” about the designation of the DRC.
(Id.)
On June 3, 2013, the BIA remanded the case to the
Immigration Judge.
(Trump Decl. ¶ 13.)
On June 19, 2013,
Petitioner appeared before the IJ and indicated a fear of return
to the DRC and requested the opportunity to apply for protection
under the Convention Against Torture (“CAT”).
14.)
(Trump Decl. ¶
On July 17, 2013, the IJ received Petitioner’s 1-589
Application for Asylum, Withholding of Removal and relief under
the CAT.
The IJ set October 21, 2013 for a merits hearing on
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Petitioner’s application for protection under the CAT.
(Trump
Decl. ¶ 15.)
B.
Procedural Background
Petitioner filed the instant Petition on July 24,
2013.
[Dkt. 1.]
supervision.
Petitioner seeks to be released under ICE
On July 31, 2013, the Court ordered the United
States to file a response to the Petition.
30, 2013, Respondents filed a response.
13, 2013, Petitioner filed a reply.
[Dkt. 2.]
[Dkt. 5.]
On August
On September
[Dkt. 6.]
II. Analysis
Petitioner contends that his continued detention is
not authorized by the Immigration and Nationality Act (“INA”)
and the Fifth Amendment.
The Petition contains two claims.
First, Petitioner claims that he has been held for an
unreasonable amount of time under Section 241 of the INA, 8
U.S.C. § 1231.
(Pet. ¶ 24.)
Second, Petitioner claims that he
should be released because there is no significant likelihood
that he will be removed to the DRC in the foreseeable future and
he does not pose a danger to the community.
A.
(Pet. ¶ 28.)
Detention After a Final Order of Removal
Detention of a deportee after the entry of an
administrative order of removal is governed by 8 U.S.C. §
1231(a).
This section provides the Attorney General with a
“removal period” of up to 90 days to remove a deportee from the
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country.
Id. § 1231(a)(1)(A).
Several events can trigger the
start of the “removal period,” including, as Petitioner alleges
here, the entry of an administratively final order of removal.
See id. § 1231(a)(1)(B).
The Government detains the deportee during the
“removal period” pending deportation.
Id. § 1231(a)(2).
The
statute presumes that the Government will deport the detained
individual before the 90-day “removal period” ends.
Generally,
when an “alien does not leave or is not removed within the
removal period, the alien, pending removal, shall be subject to
supervision under regulations prescribed by the Attorney
General.”
Id. § 1231(a)(3).
For “inadmissible or criminal
aliens,” however, the statute allows the Government to continue
detention “beyond the removal period.”
Id. § 1231(a)(6).
In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme
Court held that the broad language of § 1231(a)(6) did not bar
petitioners from seeking a writ of habeas corpus under 28 U.S.C.
§ 2241.
Zadvydas, 533 U.S. at 687.
To avoid the constitutional
difficulties inherent in a grant of authority to detain
deportees indefinitely, the Court explained that § 1231(a)(6),
“read in light of the Constitution’s demands, limits an alien’s
post-removal-period detention to a period reasonably necessary
to bring about that alien’s removal from the United States.”
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Id. at 689.
“It does not,” the Court emphasized, “permit
indefinite detention.”
Id.
To determine whether the detention of a deportee
beyond the 90-day “removal period” under § 1231(a)(6) comports
with the Constitution, the Court held, “the habeas court must
ask whether the detention in question exceeds a period
reasonably necessary to secure removal.”
Id. at 699.
The Court
recognized a six-month detention as presumptively reasonable
under § 1231(a)(6).
Id. at 701.
After six months have elapsed
since the beginning of the “removal period,” and “once the alien
provides good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future, the
Government must respond with evidence sufficient to rebut that
showing.”
Id.
The Government could continue to confine an
alien “until it has been determined that there is no significant
likelihood of removal in the reasonably foreseeable future.”
Id.
Zadvydas establishes a two-pronged inquiry to
determine whether § 1231(a)(6) allows detention beyond the 90day “removal period.”
First, a petitioner must show that he has
been held for more than six months after the issuance of the
final administrative order of removal.
Second, the petitioner
must show that there is no significant likelihood of removal in
the reasonably foreseeable future.
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See Akinwale v. Ashcroft,
287 F.3d 1050, 1052 (11th Cir. 2002); see also Ali v. Barlow,
446 F. Supp. 2d 604, 610 (E.D. Va. 2006).
Because Petitioner
bears this burden, ICE can continue to detain a deportee “until
it has been shown that there is no significant likelihood of
removal within the reasonably foreseeable future.”
Bonitto v.
B.I.C.E., 547 F. Supp. 2d 747, 754 (S.D. Tex. 2008).
The Zadvydas Court posited a sliding scale for what
“reasonably foreseeable future” means: the longer the postremoval order confinement, the more stringent a court should be
in determining what constitutes the “reasonably foreseeable
future.”
Zadvydas, 553 U.S. at 701; see also Seretse-Khama v.
Ashcroft, 215 F. Supp. 2d. 37, 48 (D.D.C. 2002) (finding that,
for a deportee detained for more than three years, “reasonably
foreseeable future” meant the point at which the removal would
be “truly imminent”).
Petitioner filed his Petition on July 24, 2013,
claiming that he had been detained under a final order of
removal for approximately 180 days.
(Pet. ¶ 22.)
Petitioner
claims that because the Fourth Circuit did not issue a stay of
removal, he remains under a final order of removal.
The
Government argues that Petitioner is not held under a final
order of removal.
The Government admits that the order of
removal originally became final on June 12, 2013, upon the BIA’s
denial of Petitioner’s appeal.
(Gov’t Resp. at 13.)
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The
Government argues, however, that this order of removal is no
longer final.
(Gov’t Resp. at 13.)
When the case was remanded
by the Fourth Circuit to the BIA, Petitioner was permitted to
present an application for CAT protection.
Therefore, the
Government argues, no final order of removal exists and
Petitioner could not be legally removed from the country. 1
(Gov’t Resp. at 14.)
The Court agrees that Petitioner is no longer under an
administratively final order of removal.
The Fourth Circuit
remanded Petitioner’s case to the BIA, which then remanded it to
the IJ to address the designation of the DRC as the country of
removal.
Petitioner has alleged fear of return to the DRC and
applied for protection under the CAT.
(Gov’t Resp. at 13-14.)
Because of Petitioner’s pending CAT claim, “the remand in this
case potentially affects the underlying removal order.”
Alam v.
Holder, No. 13-1654, 2013 WL 5943406, at *1 (4th Cir. Nov. 7,
2013) (noting in the context of a remand from the BIA to the IJ
to consider withholding of removal or protection under the CAT
that “[u]nlike a remand for solely a voluntary departure
determination or designation of a country of removal, the remand
in this case potentially affects the underlying removal order”).
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On August 28, 2013, the DHS filed a Motion to Vacate the Previous Order of
Removal with the Immigration Judge. (Gov’t Resp. Ex. 1 [Dkt. 5-1].) DHS
requested the court vacate its previous removal order to “ensure procedurally
that the respondent that the opportunity to apply for deferral of removal
under the CAT, and to clarify that the respondent is no longer under an
administratively final order of removal.” (Gov’t Resp. Ex. 1.)
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Because the IJ is considering Petitioner’s application for
deferral of removal under the CAT, which “may directly affect
whether he is removed” he is not currently under a final order
of removal.
Id.
Thus, Petitioner is not held pursuant to 8 U.S.C. §
1231; instead he is subject to mandatory detention as a criminal
alien pursuant to 8 U.S.C. § 1226(c)(1)(B).
B.
Detention Pending a Final Order of Removal
Section 1226(c) provides, in relevant part:
(c) Detention of criminal aliens
(1) Custody
The Attorney General shall take into custody any alien
who -(A)
is inadmissible by reason of having committed any
offense covered in section 1182(a)(2) of this
title,
(B)
is deportable by reason of having committed any
offense covered in section 1227(a)(2)(A)(ii),
(A)(iii), (B), (C), or (D) of this title,
(C)
is deportable under section 1227(a)(2)(A)(i) of
this title on the basis of an offense for which
the alien has been sentence to a term of
imprisonment of at least 1 year, or
(D)
is inadmissible under section 1182(a)(3)(B) of
this title or deportable under section
1227(a)(4)(B) of this title,
when the alien is released, without regard to
whether the alien is released on parole,
supervised release, or probation, and without
regard to whether the alien may be arrested or
imprisoned again for the same offense.
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8 U.S.C. § 1226(c).
Petitioner is subject to mandatory
detention under § 1226(c)(1)(B) for having committed offenses
covered in § 1227(a)(2)(A)(iii), § 1227(a)(2)(A)(ii), and §
1227(a)(2)(B)(i).
C.
(See Gov’t Resp. Ex. 4.)
Petitioner is not Unreasonably Detained
Moreover, even if Petitioner were held under a final
order of removal, his detention is not unreasonable.
8 U.S.C. §
1231(a)(1)(C) provides that “the removal period shall be
extended beyond a period of 90 days and the alien may remain in
detention during such extended period if the alien . . . acts to
prevent the alien’s removal subject to an order of removal.”
Petitioner’s removal has been delayed in order to permit him to
present a CAT claim after he initially failed to file an
application for deferral of removal under the CAT.
The delay in
Petitioner’s removal is due to his current position that he
would be tortured upon removal to the DRC.
Additionally, Petitioner argues that he should be
released because there is no reasonable likelihood of removal to
the DRC.
The Government contends that to the contrary, a
reasonable likelihood of deportation to the DRC does exist and
that ICE has deported individuals to the DRC in both 2012 and
2013.
(Gov’t Resp. at 16.)
The Government has submitted the
Declaration of Samuel Hartfield, which states that 17 aliens
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were removed to the DRC in 2012 and 18 aliens were removed to
the DRC in 2013.
(Gov’t Resp. Ex. 2 [Dkt. 5-1].)
Petitioner has not met his burden of showing that
there is no significant likelihood of removal in the reasonably
foreseeable future.
Courts have found that removal was not
“reasonably foreseeable” in situations where no country would
accept the detainee, the country of origin refused to issue
proper travel documents, the United States and the country of
origin did not have a removal agreement in place, or the country
to which the deportee was going to be removed was unresponsive
for a significant period of time.
Supp. 2d 469, 475 (E.D. Pa. 2003).
See Nima v. Ridge, 286 F.
Petitioner’s deportation, by
contrast, has been delayed in order to allow him to apply for
CAT protection; if his CAT application is denied, Petitioner
stands to be deported to the DRC.
Thus, even if petitioner were
detained under § 1231, his detention is not unreasonable.
D.
Due Process
Petitioner also argues that his continued detention
violates the Due Process Clause of the Fifth Amendment.
Given
the Court’s conclusion that Petitioner is subject to mandatory
detention pursuant to Section 1226(c), this argument fails.
See
Demore v. Kim, 538 U.S. 510, 531 (2003) (holding that mandatory
detention prior to the entry of a final order of removal under
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Section 1226(c) does not violate protections guaranteed under
the Constitution).
IV.
Conclusion
For these reasons, the Court will deny Petitioner’s
motion.
An appropriate order will issue.
December 16, 2013
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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