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Boachie-Danquah v. U.S. Attorney General

United States District Court, S.D. Ohio, Western Division

February 14, 2018

U.S. ATTORNEY GENERAL, et al., Respondents.

          Black, J.


          Stephanie K. Bowman United States Magistrate Judge.

         Petitioner, who is currently detained pursuant to removal orders issued by United States Immigration and Customs Enforcement (ICE), [1] has 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).

         For the reasons stated below, the undersigned recommends that the motion be granted and the petition be denied without prejudice.

         I. BACKGROUND

         On 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).[2] (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).

         Petitioner 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.

         Respondents 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).

         Petitioner has filed a response in opposition to respondents' motion. (Doc. 14).

         II. OPINION

         Congress 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.

         By its 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.

         In 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 ...

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