Onyango v. Sessions et al

Filing 4

ORDER signed by Judge J.P. Stadtmueller on 11/17/2017. Respondents Jeff Sessions, Elaine C. Duke, and Ricardo Wong DISMISSED from action. Clerk of Court DIRECTED to effect service of the petition and this Order upon Respondent. Within 30 days, Re spondent to file motion to dismiss or answer petition. IF RESPONDENT FILES ANSWER, briefing to proceed as follows: Petitioner's brief in support of his Petition due within 30 days of filing of Respondent's answer; Respondent's oppositi on brief due within 30 days of service of Petitioner's brief or 45 days of this Order if Petitioner does not file a brief; Petitioner's reply due within 10 days of filing of Respondent's brief. IF RESPONDENT FILES MOTION, briefing to p roceed as follows: Petitioner's brief in opposition due within 30 days of filing of Respondent's motion; Respondent's reply due within 15 days of filing of Petitioner's brief. Civil L.R. 7(f) governs page limitations. See Order for further details. (cc: all counsel, via mail to Allan Wasonga Onyago at Dodge County Detention Facility)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ALLAN WASONGA ONYANGO,
Petitioner,

v.

Case No. 17-CV-1517-JPS

JEFF SESSIONS, ELAINE C. DUKE,
RICARDO WONG, and DALE
SCHMIDT,

ORDER

Respondents.

On November 3, 2017, Allan Wasonga Onyango (“Onyango”), a
state prisoner, filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241, challenging his detention in connection with removal
proceedings. (Docket #1). As an initial matter, the Court must screen
Onyango’s motion under Rule 4 of the Rules Governing Section 2254
Proceedings, which requires the Court to promptly examine the motion
and dismiss it “[i]f it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the petitioner is not
entitled to relief.”1
1.

FACTS AND PROCEDURAL HISTORY
Onyango is a native and citizen of Kenya. He came to the United

States in 2006 to attend college in Michigan. In 2010, he was convicted of
using a false document and misdemeanor assault. He was taken into

Rule 1(b) of those Rules and Civil Local Rule 9(a)(2) give this Court the
authority to apply the rules to other habeas corpus cases, including the rule
permitting screening of the petition.
1

custody by U.S. Immigration and Customs Enforcement (“ICE”) after his
release from custody on those convictions.
Removal proceedings were initiated against Onyango. He did not
oppose removal but sought relief therefrom under the Convention
Against Torture. His request was denied at all levels of review. However,
rather than being removed, Onyango was released from ICE custody
under an order of supervision in 2012.
Then, on April 17, 2017, ICE issued Onyango a notice of revocation
of his release and took him back into custody. He was interviewed on
April 27, 2017, after which the reviewing official determined that
detention should continue. A written decision continuing his review
further was issued on July 26, 2017. The order stated that travel
documents required for him to be removed to Kenya had been requested
and were “expected.”
On October 26, 2017, ICE issued another written decision to
continue his detention. Again, the order stated that ICE expected to
receive necessary travel documents from the government of Kenya.
However, the order did not say whether ICE had actually contacted the
Kenyan government about him or whether it had received any
information from the Kenyan government about the status of those travel
documents.
To Onyango’s knowledge, and despite his continued cooperation
with efforts to remove him to Kenya—including requesting travel
documents from Kenya himself, surrendering his own identification
documents, and providing ICE with his fingerprints—the Kenyan
government still has not issued travel documents for him, and ICE has
given no indication that those documents will be forthcoming in the
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reasonably foreseeable future. He remains detained at the Dodge County
Detention Center in Juneau, Wisconsin. He requests that the Court order
his immediate release from custody and placement on supervision
pending his removal.
2.

LEGAL STANDARDS
An alien ordered removed from this country generally must be

removed within ninety days. 8 U.S.C. § 1231(a)(1)(A). This is called the
“removal period.” Id. During that period, the alien must be detained. Id. §
1231(a)(2). If not removed within the removal period, the alien is normally
to be released under the government’s supervision. Id. § 1231(a)(3).
However, the Attorney General may continue to detain him beyond the
removal period if the alien presents a risk to the community or is unlikely
to comply with the order of removal. Id. § 1231(a)(6).
In Zadvydas v. Davis, 533 U.S. 678, 682 (2001), the Supreme Court
addressed “whether [the] post-removal-period statute authorizes the
Attorney General to detain a removable alien indefinitely beyond the
removal period or only for a period reasonably necessary to secure the
alien’s removal.” The Court determined that the latter was the appropriate
standard. Id. at 689. To find that the statute permitted indefinite detention
would, in the Court’s view, raise serious due process concerns. Id. at 690.
Although the text of the statute says nothing about reasonableness, the
Court read that limitation into it to avoid a collision with the Constitution.
See id. at 690–98.
Thus, the Court concluded that “once removal is no longer
reasonably foreseeable, continued detention is no longer authorized by
statute.” Id. at 699. In such a case, “the alien’s release may and should be
conditioned on any of the various forms of supervised release that are
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appropriate in the circumstances, and the alien may no doubt be returned
to custody upon a violation of those conditions.” Id. at 699–700. Further, if
removal is reasonably foreseeable, “the habeas court should consider the
risk of the alien’s committing further crimes as a factor potentially
justifying confinement within that reasonable removal period.” Id. at 700.
To provide clarity to later courts, the Court specified that a
presumptively reasonable period of detention for purposes of removal
should not exceed six months. Id. at 701. Once that period expires, 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 alien need not show “the absence of any prospect of
removal—no matter how unlikely or unforeseeable,” but merely that
removal is not reasonably foreseeable. Id. at 702. Similarly, the
government cannot rest solely on assertions of good-faith efforts to secure
removal. Id. As the period of post-removal confinement grows, “what
counts as the ‘reasonably foreseeable future’ conversely would have to
shrink.” Id. at 701. However, the six-month presumption “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.
3.

ANALYSIS
In this case, the Court cannot say that Onyango’s petition is plainly

without merit. The presumptively reasonable period of detention elapsed
over a month ago. Further, based on Onyango’s representations that he is
fully cooperative in the effort to effect his removal, and that the removal
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does not appear to be moving forward in any meaningful fashion, the
Court finds—as a preliminary matter of screening only—that he has
proffered sufficiently good reasons to believe that his removal is not
reasonably foreseeable. Under Zadvydas, the burden must now rest with
the government to justify Onyango’s continued detention. See Cesar v.
Achim, 542 F. Supp. 2d 897, 903 (E.D. Wis. 2008) (the burden shifts to the
government “if the alien can offer any legitimate argument as to why
there is no significant likelihood of removal”).2 Consequently, the Court
will order Schmidt to respond to the petition and will set a briefing
schedule. See Rule 4(b) of the Rules Governing Section 2254 Cases.3
Although Onyango’s claims may proceed, the Court must dismiss
certain of the respondents as improvidently named. A Section 2241 habeas
petition is properly lodged against “the person who has custody” over the
petitioner. 28 U.S.C. § 2242; id. § 2243 (“The writ, or order to show cause
shall be directed to the person having custody of the person detained.”).
In “core” habeas cases—those in which the prisoner challenges his present
physical confinement—this will be the warden of the prison where he is
being held. Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). The Supreme
Court instructs that in such cases, the respondent should “not [be] the

Further, it appears that Onyango has received all the administrative
review to which he is entitled under Immigration and Naturalization Service
(“INS”) regulations on the matter. See 8 C.F.R. § 241.4. Thus, on the Court’s
preliminary review, it does not plainly appear that he has failed to exhaust his
administrative remedies. See Araujo-Cortes v. Shanahan, 35 F. Supp. 3d 533, 538
(S.D.N.Y. 2014). The Court will leave it to the government to argue otherwise.
2

Section 2243 sets out a specific timeline for Section 2241 petitions, but the
court’s prerogative over scheduling embodied in Rule 4 of the Rules Governing
Section 2254 Proceedings controls. Bleitner v. Welborn, 15 F.3d 652, 653–54 (7th
Cir. 1994); Kramer v. Jenkins, 108 F.R.D. 429, 432 (N.D. Ill. 1985).
3

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Attorney General or some other remote supervisory official.” Id.; see also
Kholyavskiy v. Achim, 443 F.3d 946, 949 (7th Cir. 2006) (“[T]he immediate
custodian [is] the individual having ‘day-to-day control’ over the facility
in which a prisoner is housed.”).
Onyango’s case is clearly one asserting that his present physical
confinement is unlawful, and so the only proper respondent is Dale
Schmidt (“Schmidt”), the Dodge County Sherriff and the day-to-day
overseer of the Dodge County Detention Center. The other named
respondents will be dismissed for the present, but if Schmidt reports that
there is some obstacle to granting complete relief because of a failure to
name some other respondent, the Court will entertain a request to join
that person.
Accordingly,
IT IS ORDERED that Respondents Jeff Sessions, Elaine C. Duke,
and Ricardo Wong be and the same are hereby DISMISSED from this
action;
IT IS FURTHER ORDERED that the Clerk of the Court shall effect
service of the petition and this Order upon Respondent pursuant to Rule 4
of the Rules Governing Section 2254 Cases; and
IT IS FURTHER ORDERED that the parties shall proceed in
accordance with the following schedule:
1.

Within 30 days of entry of this Order, Respondent shall file

either an appropriate motion seeking dismissal of this action or answer
the petition, complying with Rule 5 of the Rules Governing Section 2254
Cases, and showing cause, if any, why the writ should not issue; and
2.

If Respondent files an answer, then the parties should abide

by the following briefing schedule:
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a.

Petitioner shall have 30 days after the filing of

Respondent’s answer within which to file a brief in support of his
petition, providing reasons why the writ of habeas corpus should
be issued. Petitioner is reminded that, in accordance with 28 U.S.C.
§ 2248, unless he disputes allegations made by the respondent in
his answer or motion to dismiss, those allegations “shall be
accepted as true except to the extent that the judge finds from the
evidence that they are not true.”
b.

Respondent shall file an opposition brief, with

reasons why the writ of habeas corpus should not be issued, within
30 days of service of Petitioner’s brief, or within 45 days from the
date of this order if no brief is filed by Petitioner.
c.

Petitioner may then file a reply brief, if he wishes to

do so, within 10 days after Respondent has filed a response brief.
3.

If Respondent files a motion in lieu of an answer, then the

parties should abide by the following briefing schedule:
a.

Petitioner shall have 30 days following the filing of

Respondent’s dispositive motion and accompanying brief within
which to file a brief in opposition to that motion.
b.

Respondent shall have 15 days following the filing of

Petitioner’s opposition brief within which to file a reply brief, if
any.
Pursuant to Civil Local Rule 7(f), the following page limitations
apply: briefs in support of or in opposition to the habeas petition or a
dispositive motion filed by Respondent must not exceed thirty pages and
reply briefs must not exceed fifteen pages, not counting any caption, cover
page, table of contents, table of authorities, and/or signature block.
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Because Petitioner’s filings will be electronically scanned and
entered on the docket upon receipt by the clerk, Petitioner need not mail
to counsel for Respondent copies of documents sent to the Court.
Dated at Milwaukee, Wisconsin, this 17th day of November, 2017.
BY THE COURT:

___________________________________________

J. P. Stadtmueller
U.S. District Judge

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