Mjili v. Department of Homeland Security et al

Filing 10

ORDER signed by Judge Pamela Pepper on 5/26/2016 DENYING AS MOOT 7 Petitioner's Motion to Proceed Without Prepayment of the Filing Fee; SCREENING 6 the Amended Petition; and REQUIRING a response. The court ORDERS that the respondent must fi le an answer within 30 days of the date of this order. If the petitioner chooses to file a reply, the court ORDERS that he must file any reply in support of his petition within 14 days of the filing of the respondent's answer. (cc: all counsel; by US Mail to petitioner) (pwm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
YUSUF HERI BAKARI MJILI,

Case No. 16-cv-173-pp

Petitioner,
v.
WILLIAM POLLARD,1
Respondent.

ORDER DENYING AS MOOT THE PETITIONER’S MOTION TO PROCEED IN
FORMA PAUPERIS (DKT. NO. 7), SCREENING THE AMENDED PETITION
(DKT. NO. 6) AND REQUIRING A RESPONSE
_____________________________________________________________________________
INTRODUCTION
On February 16, 2016, petitioner Yusuf Heri Bakari Mjili (currently
detained at the Dodge County Detention Facility) filed an Application for Writ of
Habeas Corpus pursuant to 28 U.S.C. §2241 By a Person in Custody. Dkt. No.
1. The document was eight pages long, although the official form for filing
petitions under §2241 is thirteen pages, not counting the instruction page.
Without the missing pages, the court could not determine what the petitioner
alleged the respondents had done, why he asserted that their actions were
wrong, or what he wanted the court to do. Therefore, the court ordered the
petitioner to file an amended complaint by Friday April 28, 2016. Dkt. No. 4.
The petitioner named the Department of Homeland Security, ICE, and Sheriff
Dale Schmidt as respondents. The proper respondent in this case is Warden
William Pollard, because he has day-to-day control over the petitioner at Dodge
County Correctional. Robledo-Gonzales v. Ashcroft, 342 F.3d 667, 672-73 (7th
Cir. 2003). The court will substitute Warden Pollard as the respondent in this
case and will dismiss the other parties from this action.
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On March 9, 2016, the petitioner filed an amended petition. Dkt. No. 6.
With the petition, he filed a motion for leave to proceed in forma pauperis. Dkt.
No. 7. When the petitioner filed his first petition on February 16, 2016,
however, he paid the $5.00 filing fee in full. He does not have to pay a second
filing fee for filing an amended petition. Therefore, the court will deny as moot
the petitioner’s motion to proceed without paying the filing fee. Because the
petitioner has paid the filing fee in full and has timely filed an amended
petition, the court will now screen his petition.
SCREENING THE AMENDED PETITION
On March 9, 2016, the petitioner filed an amended habeas corpus
petition pursuant to 28 U.S.C. §2241. Dkt. No. 6. The petitioner currently is
incarcerated at Dodge County Detention Facility. Id. at 1. His petition
challenges his detention by Immigration and Customs Enforcement (“ICE”). Id.
at 2. He asserts that on April 20, 2015, ICE issued a “final order of removal
(deportation)” for the petitioner. Id. at 2, 4. At the time he filled out the petition,
the petitioner had “been detailed as an immigration detainee” for about ten
months. Id. at 4. This petition is his first and only challenge to this detention.
Id. at 5-9.
On pages 10-12 of the petition, the petitioner provides four grounds for
relief, and describes what he would like the court to do. He entitles ground one,
“Unavailability of Travel Documents in foreseeable Future.” Id. at 10. According
to the petitioner, the government of Tanzania has not issued him travel
documents in the ten months prior to the date he filed the amended complaint,
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“claiming that Mr. Yusuf Mjili is NOT a citizen of Tanzania. Therefore no Travel
documents will be issued in foreseeable Future.” Id.
In ground two, the petitioner states that he has been in ICE custody “for
Ten Months after Signing the Final order of Removal documents presented by
ICE Agent.” Id. He indicates that he was placed into ICE custody on April 20,
2015, and that he signed the final order of removal (issued by the immigration
judge) the same day. Id. at 6-7. The petitioner states that he has “Fully with
ICE Agents by signing any and . . . every document presented by ICE in order
to Facilitate the Removal Process to the Native Country of Tanzania.” Id. at 11.
Third, the petitioner asserts that he qualifies for release “under
Supervision or Release under the order of Supervision.” Id. Because Tanzania
will not issue travel documents “in the foreseeable Future,” the petitioner
requests that ICE release him. Id. He notes that he has “Friends in Chicago
and Des Moine, IA[] who are willing and able to live with him for the Time
being.” Id.
Finally, in his fourth ground for relief, alleges that he “has been
attending AA, NA and Work Programs offered by Dodge County detention
facility,” so that he can improve and be a productive member of society. Id. at
12. He asserts that he “intend[s] to continue with Rehabilitation” if released “by
attending Various Sub[s]tance Abuse Education in order to be a Productive
Member of Society.” Id.
Page 12 of the petition contains a section entitled “Request for Relief.” It
asks the petitioner to “[s]tate exactly what you want the court to do for you.” Id.
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In this section, the petitioner “ask[s] the Court to order his Release from
Custody of U.S. Immigration and Customs Enforcement (ICE).” Id. He again
emphasizes that Tanzania will not issue travel documents any time soon.
Because of that and because he has been detained for ten (now thirteen)
months, he “should be released.” Id.
In accordance with Rule 1(b) of the Rules Governing 2254 Cases and
Civil L. R. 9(a)(2), the court applies the Rules Governing Section 2254 cases to
petitions for a writ of habeas corpus under 28 U.S.C. §2241. Chagala v. Beth,
No. 15-CV-531, 2015 WL 2345614, at *1 (E.D. Wis. May 15, 2015). Those rules
require the court to review, or “screen” the petition. Rule 4 of the Rules
Governing Section 2254 Cases states:
If it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in
the district court, the judge must dismiss the petition
and direct the clerk to notify the petitioner. If the
petition is not dismissed, the judge must order the
respondent to file an answer, motion, or other
response within a fixed time, or to take other action
the judge may order.
According to the petitioner, ICE issued a final order of removal on
April 20, 2015. “There is a constitutional presumption that the government
must secure removal within six months following a final order of removal.”
Belafkih v. Dep’t. of Homeland Sec., No. 07-C-452, 2007 WL 1651327, at *1
(E.D. Wis. June 5, 2007). “‘After this 6-month period, 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

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sufficient to rebut that showing.’” Id. (quoting Zadvydas v. Davis, 533 U.S. 678,
701 (2001)).
If what the petitioner asserts is true, he has been detained for twice the
“presumptive 6-month period.” Id. The petitioner consistently “notes difficulty
securing appropriate travel documents from the [Tanzanian] government.” Id.
Because the petitioner has provided sufficient reasons that there is no
significant likelihood of removal in the foreseeable future, the respondent must
respond with evidence to rebut the petitioner’s statements.
The court notes that the Immigration and Naturalization Act (INA) allows
a court to stay a removal period. 8 U.S.C. §1231. Under the INA,
the removal period begins on the latest of the
following:
(i) The date the order
administratively final.

of

removal

becomes

(ii) If the removal order is judicially reviewed and if a
court orders a stay of the removal of the alien, the date
of the court’s final order.
(iii) If the alien is detained or confined (except under
an immigration process), the date the alien is released
from detention or confinement.
8 U.S.C. §1231(a)(1)(B)(i)-(iii). The petitioner alleges that the removal period
began to run on April 20, 2015. For the purposes of screening, the court
accepts that allegation. In addition to responding to the petition, the
respondent may dispute the timing of the removal period.

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CONCLUSION
The court DISMISSES respondents Department of Homeland Security,
ICE, and Dale Schmidt. The court ORDERS that the clerk of court substitute
Warden William Pollard as the respondent in this case.
The court DENIES AS MOOT the petitioner’s motion for leave to proceed
in forma pauperis (Dkt. No. 7).
The court ORDERS the respondent to file an answer showing cause, if
any, why a writ should not issue with respect to the petition for habeas corpus.
The court ORDERS the respondent to file the answer within thirty (30) days
of the date of this order. If the petitioner chooses to file a reply, the court
ORDERS the petitioner to file any reply in support of his petition within
fourteen (14) days of the filing of the respondent’s answer.
The court will send a copy of the petition and this order to the Warden of
Dodge Correctional Institution. Pursuant to Fed. R. Civ. P. 4(i), the court will
also send a copy of the petition and this order to the United States Attorney for
this District, and via registered or certified mail to the United States Attorney
General in Washington, D.C., the United States Immigration and Customs
Enforcement, and the United States Department of Homeland Security.
Dated in Milwaukee, Wisconsin this 26th day of May, 2016.

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