Dobberpuhl v. Trevline et al

Filing 12

ORDER denying re 1 Petition for Writ of Habeas Corpus filed by Carmelo Raymond Dobberpuhl (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

CARMELO RAYMOND DOBBERPUHL,
Petitioner,
v.

Case No. 16-CV-1206

SHERIFF DALE J. SCHMIDT,
Respondent.

DECISION AND ORDER

Petitioner Carmelo Raymond Dobberpuhl, a Bolivian citizen subject to a final order of
removal and currently detained at the Dodge County Detention Center pending actual removal, filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner alleges his continued
detention beyond six months is contrary to Zadvydas v. Davis, 533 U.S. 678 (2001). He seeks a writ
ordering his immediate release. For the reasons below, the petition will be denied.
BACKGROUND
Petitioner was born in Bolivia and later moved to the United States when he was adopted by
an American family. (ECF No. 1 at 10.) On June 15, 2010, an immigration judge ordered
Petitioner’s removal and Petitioner was removed from the United States on August 16, 2010,
apparently due to criminal convictions for multiple drug offenses. (Id. at 10, 1-1) Petitioner later
re-entered the United States illegally. Petitioner’s removal order was reinstated on July 15, 2015
and United States Immigration and Customs Enforcement (ICE) took Petitioner into custody in
December 2015 . (Id.; ECF No. 1-1 at 2.) The order of removal became final on February 5, 2016

when an Asylum Officer found that Petitioner did not establish a reasonable fear of persecution.
(ECF No. 1 at 10.) On March 11, 2016 and July 5, 2016, ICE reviewed Petitioner’s custodial status
and notified Petitioner of its decision to continue detention pending the issuance of a travel document
from the Bolivian government. (Id.; ECF No. 1-1 at 3–4.) Petitioner filed this habeas petition on
September 7, 2016. As of that date Petitioner had been in civil immigration detention for
approximately nine months. By now he has been so detained for almost one year and he has been
detained for more than nine months since the issuance of the Notice of Intent/Decision to Reinstate
Prior Order. Petitioner asserted one claim for relief: his continued detention beyond the six month
period articulated in Zadvydas v. Davis, 533 U.S. 671 (2001) was unlawful because there is no
evidence that his removal was significantly likely to occur in the reasonably foreseeable future.
LEGAL STANDARD
A federal court may grant habeas relief to a detainee who “is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(a), (c)(3). In determining
whether to grant such relief, the court may consider affidavits and documentary evidence such as
records from any underlying proceeding. §§ 2246–2247. No evidentiary hearing is required where
the petition and response present only issues of law. § 2243.
ANALYSIS
Detention of aliens who have been ordered removed is governed by 8 U.S.C. § 1231. See
Zadvydas, 533 U.S. at 683. Section 1231(a) provides for mandatory detention of aliens ordered
removed during a 90-day “removal period,” that begins when the removal process becomes final.
8 U.S.C. § 1231(a)(1)(A)–(B), (a)(2). Section 1231(a)(6) authorizes detention beyond the removal
period, but § 1231(a)(6) is subject to the Supreme Court’s decision in Zadvydas. Zadvydas involved
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challenges to § 1231(a)(6) by aliens ordered removed but not actually removed given the lack of any
country willing to accept them or the lack of an extradition treaty or repatriation agreement with the
would-be receiving country. 533 U.S. at 684. For the sake of uniform administration in federal
courts, the Court adopted a 6-month period in which post-removal-order detention is presumptively
reasonable. Id. at 701. “After this 6–month period,” the Court concluded, “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. . . . This
6–month presumption, of course, does not mean that every alien not removed must be released after
six months. To the contrary, 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.” Id.
Petitioner argues that ICE twice declined to release him on post-order custody review, that
he has cooperated with ICE’s attempts to remove him, and that ICE has been unable to obtain travel
documents from the Bolivian consulate. However, there has been no showing that Bolivia refuses
to accept Petitioner or United States deportees in general. Bolivia previously issued a Travel
Document for Petitioner in 2010. (ECF No. 10-1, ¶ 10.) According to the Declaration of
Deportation Officer Landmeier, the Enforcement and Removal Office (ERO) has been in repeated
contact with the Embassy of Bolivia since December 2015. (Id. at ¶¶ 9–10.) As of October 19,
2016, ERO had forwarded a new fingerprint card to the Embassy of Bolivia, expected a conference
call to discuss Petitioner’s removal, and received no indications of delay from the Embassy. (Id. at
¶¶ 11–12.)
I cannot conclude there is no significant likelihood of Petitioner’s removal in the reasonably
foreseeable future based solely on Petitioner’s assertion that he has cooperated with his removal
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attempts and that the Bolivian consulate has not yet provided travel documents. Unlike the detention
in Zadvydas, Bolivia has not demonstrated an unwillingness to receive Petitioner and in fact received
him in the past. Therefore, Petitioner’s continued detention is authorized under § 1231(a)(6) as
construed by the Supreme Court in Zadvydas.
CONCLUSION
The petition for a writ of habeas corpus is denied. The Clerk is directed to enter judgment
of dismissal of this action forthwith.
SO ORDERED this

29th

day of November, 2016.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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