Houhamdi v. Lynch et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATION; habeas petition is dismissed by U.S. District Judge John C Coughenour. (RS)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MOHAMED HOUHAMDI,

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Petitioner,
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CASE NO. C15-1668-JCC
ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
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LORETTA LYNCH, et al.,
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Respondents.
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This matter comes before the Court on the Report and Recommendation of the Honorable

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16 James P. Donohue, United States Magistrate Judge (Dkt. No. 18), Petitioner Houhamdi’s
17 Objections (Dkt. No. 28), and the Government’s Response (Dkt. No. 29). Having thoroughly
18 considered the parties’ briefing and the relevant record, the Court finds oral argument
19 unnecessary and hereby ADOPTS the Report and Recommendation and dismisses Mr.
20 Houhamdi’s habeas petition for the reasons explained herein.
21 I.

BACKGROUND

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Petitioner Mohamed Houhamdi is an Algerian native who entered the United States near

23 San Ysidro, California on December 7, 2013 without immigration documents. (Dkt. No. 14-1 at
24 4.) Upon entry, Mr. Houhamdi was apprehended, served with a Notice and Order of Expedited
25 Removal determining him inadmissible for entry into the United States, and held in immigration
26 detention. (Id. at 4, 7, 9.) Mr. Houhamdi was detained from December 7, 2013 to June 23 of the
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1 next year, at which time he was released and ordered to report to an Immigration and Customs
2 Enforcement (“ICE”) office in San Diego on July 16, 2014 with appropriate travel documents.
3 (Dkt. No. 14-2 at 2.)
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Mr. Houhamdi’s next contact with law enforcement, however, occurred when he was

5 arrested for domestic violence charges in Nisqually, Washington in October 2014. (Dkt. No. 146 6 at 6.) These domestic charges resulted in a no-contact order prohibiting Mr. Houhamdi from
7 contacting his wife and her children. (Dkt. No. 14-2 at 5–9, 11–12.) On February 19, 2015, Mr.
8 Houhamdi was convicted of criminal trespass and of violating the no-contact order. (Dkt. No.
9 14-4 at 8.) The same day, February 19, 2015, Mr. Houhamdi was arrested by ICE and taken to
10 the Northwest Detention Center. (Id .at 15.) He has been detained awaiting removal to Algeria
11 since that date, over sixteen months ago. (Dkt. No. 6 at 1.)
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There have been several attempts to deport Mr. Houhamdi to Algeria. On February 27,

13 2015, ICE requested travel documents from the Algerian Consulate in New York City. (Dkt. No.
14 15 at 1.) In March 2015, an ICE official indicated that receiving a travel document for Mr.
15 Houhamdi would be “unlikely” as “Algeria has not issued a travel document in over 3 years.”
16 (Dkt. No. 14-6 at 19.) However, this tide began to slowly change. By December 2015—after
17 considerable waiting and follow-up—ICE officials stated that progress was being made in Mr.
18 Houhamdi’s removal case, and the Embassy of Algeria “had just issued their first travel
19 document to ICE in years.” (Dkt. No. 15 at 2.) Algerian Consul, Djaffar Chachoua, interviewed
20 Mr. Houhamdi via telephone on August 28, 2015. (Id.) On January 12, 2016, an e-mail was
21 received from the ICE Headquarters Removal and International Operations Unit (“HQRIO”)
22 indicating the possibility of receiving travel documents for five Algerian individuals, including
23 Mr. Houhamdi. (Id.) The HQRIO estimated that Mr. Houhamdi would be deported in “late
24 February, 2016.” (Id. at 3.)
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As demonstrated by the filing of the present habeas petition, Mr. Houhamdi was not so

26 removed. On March 22, 2016, he was transported from the Northwest Detention Center to the
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1 Krome Detention Center in Miami, Florida in anticipation of being flown on a “Special High
2 Risk Charter” flight to Algeria. (Dkt. No. 30 at 3.) However, on March 25, 2016 the charter
3 flight was cancelled “due to exorbitant costs.” (Id.) Mr. Houhamdi was transferred back to the
4 Northwest Detention Center on April 5, 2016. (Id.) On April 18, 2016, Mr. Houhamdi was
5 scheduled for an escorted removal to Algeria on a commercial flight to leave May 3rd. (Id.) The
6 Algerian Embassy was notified of these plans. (Id.) However, on May 2, 2016, the flight was
7 cancelled because the Algerian Embassy had not issued a travel document. (Id.) Mr. Houhamdi
8 was, once again, rescheduled for removal on June 7, 2016. (Id. at 4.) As of May 27, 2016, ICE
9 had still not received a travel document from the Algerian Embassy. (Id.)
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Mr. Houhamdi brought this habeas petition in forma pauperis on October 19, 2015. (Dkt.

11 No. 1.) His habeas petition was filed on November 25, 2015 (Dkt. No. 6) and he was appointed
12 counsel on December 2, 2015 (Dkt. No. 9). The Government moved to dismiss the habeas
13 petition on the grounds that Mr. Houhamdi’s removal to Algeria was “significantly likely to
14 occur in the reasonably foreseeable future.” (Dkt. No. 12.) On March 17, 2016, Judge Donohue
15 issued a Report and Recommendation that this Court grant the Government’s Motion to Dismiss.
16 (Dkt. No. 18.) At the request of the Federal Public Defender, the Court deferred its consideration
17 of the R&R in order to allow counsel access to pertinent immigration documents and leave to file
18 objections past the original deadline. (Dkt. Nos. 19, 20, 23, 24, 25, 27.) Mr. Houhamdi objects to
19 the R&R, arguing that the timeline of his case establishes that his removal to Algeria is not, in
20 fact, likely to occur in the foreseeable future. (Dkt. No. 28 at 1.)
21 II.

DISCUSSION

22 A.

Standard of Review

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Upon objection to a magistrate judge’s report and recommendation, district courts are

24 required to review de novo “those portions of the report or specified proposed findings or
25 recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). Mr. Houhamdi objects
26 both to Judge Donohue’s conclusion that travel documents from Algeria are “likely to issue in
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1 the foreseeable future” (Dkt. No. 28 at 1–2) and to the legal test applied by Judge Donohue,
2 requiring him to prove either that “Algeria will refuse to accept him or that removal would
3 violate United States law.” (Id. at 2; see also Dkt. No. 18 at 6.)
4 B.

Report and Recommendation and Objections

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Judge Donohue concluded that, in light of the Algerian Embassy’s recent progress in

6 issuing travel documents, Mr. Houhamdi’s argument that his request for such documents would
7 be “categorically denied” was defeated. (Dkt. No. 18 at 5.) Judge Donohue acknowledged that
8 the issuance of one travel document “does not foretell issuance of a travel document for
9 Petitioner.” (Id.). The Report and Recommendation concludes that, absent proof that Algeria will
10 deny his request for travel documents, Mr. Houhamdi “fails to show that his detention is
11 indefinite under Zadvydas [v.. Davis, 533 U.S. 678 (2001)].” (Id. at 6–7.) In so concluding, Judge
12 Donohue emphasized the correspondence between ICE and the Algerian Embassy. (Id.)
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Mr. Houhamdi argues, both in response to the motion to dismiss and in objection to the

14 Report and Recommendation, that the history of his case establishes just the opposite: given the
15 length of his detention and lack of concrete progress, his removal to Algeria is not likely to occur
16 in the reasonably foreseeable future. (Dkt. No. 16 at 5; Dkt. No. 28 at 1.) Moreover, Mr.
17 Houhamdi argues, the Report and Recommendation is based on an improper interpretation of
18 binding authority; specifically, that a habeas petitioner in his circumstances need not
19 affirmatively prove that Algeria would refuse to accept him or that his removal would violate
20 U.S. law. (Dkt. No. 28 at 2.) Mr. Houhamdi urges this Court to look closely at Ninth Circuit and
21 Supreme Court precedent, and upon de novo review, the Court does so now.
22 C.

Applicable Law

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8 U.S.C. § 1231(a)(6) authorizes ICE to detain persons, like Mr. Houhamdi, determined

24 inadmissible to the United States and subject to a final order of removal. Such detention,
25 however, may not be indefinite: “once removal is no longer reasonably foreseeable, continued
26 detention is no longer authorized by statute.” Zadvydas v. Davis, 533 U.S. 678, 699 (2001). In
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1 the context of habeas review of § 1231(a)(6) detention, the Supreme Court has instructed courts
2 to first “ask whether the detention in question exceeds a period reasonably necessary to secure
3 removal.” Id. A period of six-months is deemed “presumptively reasonable.” Id. at 701. After the
4 passage of such a period, if a detained person brings forth evidence establishing “good reason to
5 believe that there is no significant likelihood of removal in the reasonably foreseeable future,”
6 then the burden shifts to the Government to “respond with evidence to rebut that showing.” Id.
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In addition to the test set forth in Zadvydas, the Report and Recommendation stated that

8 Mr. Houhamdi “must show that Algeria will refuse to accept him or that removal would violate
9 United States law.” (Dkt. No. 18 at 6). This requirement stems from a reading of Ninth Circuit
10 authority, Diouf v. Mukasey, 542 F.3d 1222, 1233 (9th Cir. 2008) and Prieto-Romero v. Clark,
11 534 F.3d 1053, 1063 (9th Cir. 2008).
12 1.

Ninth Circuit Interpretations of Zadvydas

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In Prieto-Romero, the Ninth Circuit applied Zadvydas to detention under another

14 statutory prevision, 8 U.S.C. § 1226(a), and rejected a petition for habeas relief because the
15 petitioner was “not stuck in a ‘removable-but-unremovable limbo’ as the petitioners in Zadvydas
16 were.” 534 F.3d at 1063 (citing Jama v. Immigration and Customs Enforcement, 543 U.S. 335,
17 347 (2005)).1 The Prieto-Romero Court went on to reason that “[r]emoval was not reasonably
18 foreseeable in Zadyvdas because no country would accept the deportees, or the United States
19 lacked an extradition treaty with their receiving countries.” Id. (emphasis added).2 The Ninth
20 Circuit summarized, “Prieto-Romero foreseeably remains capable of being removed—even if it
21 has not yet finally been determined that he should be removed—and so the government retains
22 an interest in assuring his presence at removal.” Id. at 1065 (emphasis in original). The Prieto23
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The Jama case dealt with the appropriate course of action in selecting a country to deport an
inadmissible person to, and whether consent of the country is required. 543 U.S. at 337. In other words,
25 the “removable-but-unremovable” reference to Zadvydas is dictum.
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The Prieto-Romero decision also cites Clark v. Martinez, 543 U.S. 371 (2005) where the detainees’
26 removal was deemed not reasonably foreseeable in part because the U.S. was not even involved in
repatriation negotiations with Cuba. Id.

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1 Romero decision points to several examples in which a person’s removal was not deemed
2 “reasonably foreseeable,” for a variety of reasons, including (1) being stuck in an “unremovable”
3 limbo based on U.S. law, (2) a lack of repatriation negotiations between the U.S. and the country
4 of removal, or (3) evidence that the destination country will not accept the removed person. 534
5 F.3d at 1063–65. These examples have since been distilled into a rule requiring a habeas
6 petitioner “to show that he would be unremovable even if the government defeated his petition
7 for review.” Diouf v. Mukasey, 542 F.3d 1222, 1233 (9th Cir. 2008). The Court struggles to
8 identify the origins of the “unremovable” rule in Supreme Court precedent.
Upon thorough consideration of Mr. Houhamdi’s objections and the relevant authority,

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10 the Court agrees that Mr. Houhamdi habeas petition should not hinge solely on his ability to
11 show that “Algeria will refuse to accept him or that removal would violate United States law.”
12 (Dkt. No. 18 at 6.) In others words, while—as Prieto-Romero and Diouf discuss—the
13 impossibility of a habeas petitioner’s removal certainly insures that his detention is
14 impermissibly “indefinite,” the inverse is not also true: indefiniteness does not require a showing
15 of impossibility. The Court turns to the original test established in Zadvydas in examining
16 whether there exists “no significant likelihood of [Mr. Houhamdi’s] removal in the reasonably
17 foreseeable future,” and then whether the Government has rebutted such a showing. Zadvydas,
18 533 U.S. at 701.
19 2.

Reasonable Foreseeability of Mr. Houhamdi’s Removal

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First, the Report and Recommendation states, and no party disputes, that Mr. Houhamdi’s

21 detention has far surpassed the presumptively reasonable six-month mark. (Dkt. No. 18 at 5.)
22 The more pressing question for review, then, is whether Mr. Houhamdi’s removal to Algeria is
23 “reasonably foreseeable.”
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The Algerian Embassy has begun to consider requests for travel documents, although

25 there is no evidence before the Court that travel documents will issue for Mr. Houhamdi in the
26 reasonably foreseeable future. Moreover, the United States and Algeria do not have an
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1 extradition treaty. See “Treaties of Extradition” under 18 U.S.C. § 3181, available at:
2 http://www.state.gov/documents/organization/71600.pdf. Mr. Houhamdi has presented evidence
3 to doubt the likelihood of his removal to Algeria in the foreseeable future.
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The Government has, however, rebutted this showing with evidence of phone calls

5 between ICE and the Algerian Consul, the scheduling of multiple flights to Algeria, and
6 interviews of Mr. Houhamdi by embassy officials. (See Dkt. No. 29 at 4–5.) Based especially on
7 the number of flights scheduled for Mr. Houhamdi in the recent past, the Court finds that his
8 removal to Algeria is, in fact, reasonably foreseeable. Accordingly, the Court ADOPTS the
9 ultimate conclusion of the Report and Recommendation and GRANTS the Government’s motion
10 to dismiss Mr. Houhamdi’s habeas petition.
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CONCLUSION

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For the foregoing reasons, the Court ADOPTS the Report and Recommendation (Dkt.

13 No. 18). The Government’s motion to dismiss (Dkt. No. 12) is GRANTED and the above14 captioned matter is dismissed with prejudice.
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DATED this 30th day of June 2016.

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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