Ugochukwu v. Chertoff et al

Filing 6

DECISION AND ORDER signed by Judge Rudolph T Randa on 12/7/06 denying Ugochukwu's petition for a writ of habeas corpus and dismissing this matter in its entirety. Motions terminated: 2 Motion for Leave to Proceed in forma pauperis filed by Ob iekwe Stephen Okwudil Ugochukwu, 4 Motion to Stay filed by Obiekwe Stephen Okwudil Ugochukwu, 5 Motion to Appoint Counsel filed by Obiekwe Stephen Okwudil Ugochukwu, 3 Motion to Compel filed by Obiekwe Stephen Okwudil Ugochukwu. (cc: all counsel) (Randa, Rudolph T)

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Ugochukwu v. Chertoff et al Doc. 6 Case 2:06-cv-01236-RTR Filed 12/08/2006 Page 1 of 3 Document 6 UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF WISCONSIN O B IE K W E STEPHEN OKWUDIL UGOCHUKWU, P e titio n e r, v. C a s e No. 06-C-1236 M I C H A E L CHERTOFF, Secretary of DHS, DEBORAH ACHIM, and DAVID BETH, Respondents. D E C IS IO N AND ORDER T h e petitioner, Obiekwe Stephen Okwudil Ugochukwu ("Ugochukwu"), has brought a p e titio n for relief under the general habeas corpus statute, 28 U.S.C. 2241. Ugochukwu a lleg e s that he is currently being detained in the Kenosha County jail, pending deportation to N igeria pursuant to a final order of removal which was affirmed by the Seventh Circuit Court o f Appeals. As best as the Court can discern from Ugochukwu's petition, he appears to be c h a llen g in g (1) the validity of the removal order itself, and (2) the validity of his removalp eriod detention, pending deportation. After an initial review of the petition, the Court c o n c l u d e s that it must be dismissed as a matter of law. See 28 U.S.C. 2243, 1 ("A court, ju s tic e or judge entertaining an application for a writ of habeas corpus shall forthwith award th e writ or issue an order directing the respondent to show cause why the writ should not be g ra n te d , unless it appears from the application that the applicant or person detained is not e n titled thereto") (emphasis added). A s to the validity of the removal order itself, the law is very clear that a "district court la c k s jurisdiction to compel the Attorney General to initiate or resolve proceedings that Case 2:06-cv-01236-RTR Filed 12/08/2006 Page 2 of 3 Document 6 w o u ld lead to relief from removal." Sharif v. Ashcroft, 280 F.3d 786, 787-88 (7th Cir. 2002). Q u i t e simply, the Court lacks jurisdiction to issue a writ of habeas corpus that would stop the I m m ig r a tio n and Naturalization Service (INS) from implementing removal orders. While th e re are very narrow exceptions, the Court is unpersuaded that Ugochukwu's petition q u a lif ie s for one of those exceptions. See Chapinski v. Ziglar, 278 F.3d 718, 719-20 (7th Cir. 2 0 0 2 ) (exceptions to judicial review confined to rare cases that present substantial c o n stitu tio n a l issues or bizarre miscarriages of justice); see also INS v. St. Cyr, 533 U.S. 289, 3 1 4 (2001) (district courts retain jurisdiction under 28 U.S.C. 2241 to review a habeas p e titio n challenging a Board of Immigration Appeals' holding that an alien was ineligible to ap p ly for a particular form of discretionary relief from deportation). A s for Ugochukwu's removal period detention, i.e., Ugochukwu's current detention p e n d in g his deportation, when an alien has been found to be unlawfully present in the United S ta te s and a final order of removal has been entered, the Government "ordinarily secures the a lie n 's removal during a subsequent 90-day `removal period,' during which time the alien n o rm a lly is held in custody." Zadydas v. Davis, 533 U.S. 678, 682 (2001). Ninety days is o f te n not enough time to secure removal, so aliens subject to a removal order can be detained f o r a longer period of time. The Supreme Court, noting that Congress "previously doubted th e constitutionality of detention for more than six months," recognized a 6-month p re s u m p tio n for removal-period detention. Id. at 701. "After this 6-month period, once the a lie n provides good reason to believe that there is no significant likelihood of removal in the re a so n a b ly foreseeable future, the Government must respond with evidence sufficient to re b u t that showing." Id. -2- Case 2:06-cv-01236-RTR Filed 12/08/2006 Page 3 of 3 Document 6 U g o c h u k w u expends a great deal of energy arguing that he is unlikely to be deported, g iv e n his unique individual circumstances and the current political and civil unrest in N ig e ria . However, under Immigration and Naturalization Act (INA) 241(a)(1)(B)(ii) (8 U.S.C. 1231), if the removal order is judicially reviewed and the court orders a stay of th e removal of the alien, the removal period does not begin to run until the "date of the c o u rt's final order." See Quezada-Bucio v. Ridge, 317 F. Supp. 2d 1221, 1223-24 (W.D. W a s h . 2004). According to the documents submitted in connection with his petition, U g o c h u k w u 's deportation was stayed during the pendency of his appeal, the removal order w a s affirmed by the Seventh Circuit in August 2006, and the Seventh Circuit denied his p e titio n for a rehearing on October 19, 2006. Therefore, the removal period did not begin to r u n until October 19, so Ugochukwu's motion for relief from his removal-period detention is p re m a tu re it has only been one and one half months since his removal period commenced. U g o c h u k w u is free to re-petition the Court if his removal-period detention exceeds six m o n th s . N O W , THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: 1. 2. Ugochukwu's petition for a writ of habeas corpus is DENIED; and T h i s matter is DISMISSED in its entirety. D a te d at Milwaukee, Wisconsin, this 7th day of December, 2006. SO ORDERED, s /R u d o l p h T. Randa HON. RUDOLPH T. RANDA C h ie f Judge -3-

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