United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge.
who is currently detained pursuant to removal orders issued
by United States Immigration and Customs Enforcement (ICE),
filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241. (See Doc. 1). This matter
is before the Court on respondents' motion to dismiss, to
which petitioner has responded. (Doc. 12, 14).
reasons stated below, the undersigned recommends that the
motion be granted and the petition be denied without
October 2, 1997, petitioner, a native and citizen of Ghana,
entered the United States under a B-2 visitor visa. (Doc.
12-1, Glassburn Decl. at PageID 49). Petitioner overstayed
his six-month period of authorized stay and, on November 5,
2002, a notice to appear was issued, charging petitioner as
removable under 8 U.S.C. § 1227(a)(1)(B) and (a)(3)(D),
overstay of a non-immigrant visa and false claim to United
States citizenship respectively. (Id.). On October
9, 2012, petitioner was ordered removed, after petitioner
conceded removability under § 1227(a)(1)(B) and the
immigration judge sustained his removability under §
1227(A)(3)(D) and found that he was inadmissible pursuant to
INA § 212 (a)(6)(C)(ii)(I). (Id. at PageID 50,
61). Petitioner appealed the immigration judge's order.
On June 2, 2014, the Board of Immigration Appeals dismissed
his appeal, rendering petitioner's removal final.
(Id. at PageID 50, 63-66).
was taken into ICE custody on March 15, 2017. He commenced
the instant habeas corpus action on September 25, 2017.
(See Doc. 1). Petitioner contends that he is
entitled to relief because he has been detained for more than
six months with no significant likelihood of actual removal,
in violation of Zadvydas v. Davis, 553 U.S. 678
(2001). He also claims that his continued detention violates
his federal due process rights.
have filed a motion to dismiss the petition, arguing that
petitioner has not met his burden to show that there is no
significant likelihood of removal in the reasonably
foreseeable future. (Doc. 12). In support of the motion,
respondents include the Declaration of Amanda Glassburn, an
ICE Deportation Officer familiar with the deportation
proceedings against petitioner. (Doc. 12-1, Glassburn Decl.
at PageID 49). According to Glassburn, there is a significant
likelihood that petitioner will be removed in the reasonably
foreseeable future. (Doc. Id. at PageID 51).
has filed a response in opposition to respondents'
motion. (Doc. 14).
has prescribed that once an alien has been ordered to be
removed from the United States, “the Attorney General
shall detain the alien” and “remove the alien
from the United States within a period of 90 days.” 8
U.S.C. §§ 1231(a)(1)(A) & 1231(a)(2). Title 8
U.S.C. § 1231(a)(6) further provides in relevant part:
An alien ordered removed who is inadmissible under section
1182 of this title, removable under section 1227(a)(1)(C),
1227(a)(2), or 1227(a)(4) of this title or who has been
determined by the Attorney General to be a risk to the
community or unlikely to comply with the order of removal,
may be detained beyond the [90-day] removal period.
terms, § 1231(a)(6) “applies to three categories
of aliens: (1) those ordered removed who are inadmissible
under § 1182, (2) those ordered removed who are
removable under § 1227(a)(1)(C), § 1227(a)(2), or
§ 1227(a)(4), and (3) those ordered removed whom the
Secretary [of DHS] determines to be either a risk to the
community or a flight risk.” Clark v Martinez,
543 U.S. 371, 377 (2005). In Zadvydas v. Davis, 533
U.S. 678 (2001), the Supreme Court interpreted the provision
“to authorize the Attorney General (now the Secretary
[of DHS]) to detain aliens in the second category only as
long as ‘reasonably necessary' to remove them from
the country.” Clark, 543 U.S. at 377 (quoting
Zadvydas, 533 U.S. at 689, 699). The
Zadvydas Court held that reading § 1231(a)(6)
to authorize indefinite detention would “raise a
serious constitutional problem” under the Fifth
Amendment's Due Process Clause. Zadvydas, 533 U.S. at
690. Therefore, the Court “construe[d] the statute
to contain an implicit ‘reasonable time'
limitation, the application of which is subject to
federal-court review.” Id. at 682.
Zadvydas, 533 U.S. at 701, the Supreme Court
considered the six-month detention of an alien who is subject
to removal due to criminal convictions to be presumptively
reasonable. The Court then provided the following guidance in