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Mohamed v. U.S. Attorney General

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

March 8, 2018

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

          Dlott., 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), has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (See Doc. 1). Respondents filed a return of writ, to which petitioner has responded. (Doc. 8, 11-15). On February 12, 2018, respondents filed a status report updating the Court on petitioner's deportation status. (Doc. 17).

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

         I. BACKGROUND

         Petitioner is a native and citizen of Senegal. (Doc. 8-1, Williams Decl. at PageID 29). On or about December 19, 2013, ICE issued a Notice to Appear, charging petitioner with removability under section 237(a)(1)(B) of the Immigration and Nationality Act (INA) as a non-immigrant visitor who remained in the United States for a time longer than permitted. (Id.). On January 22, 2014, an immigration judge ordered petitioner to be removed from the United States. (Id.). Petitioner waived appeal of the removal order, rendering petitioner's removal final. (Id.).

         On February 23, 2017, petitioner was transferred to ICE custody after being indicted in Hamilton County, Ohio under the alias of Mouhamadou Sall for identity fraud, forgery, and possessing criminal tools. (Id.). Petitioner has been detained throughout his removal proceedings. On June 14, 2017, petitioner was served with a decision to continue detention, pursuant to an initial ninety-day Post Order Custody Review. (Id. at PageID 29). Petitioner subsequently received two additional decisions to continue detention on September 11, 2017 and December 6, 2017, on the basis that ICE continued to work with the government of Senegal to secure a travel document for petitioner's removal. (Id.). On or about November 22, 2017, Senegal's Minister of Interior verified that petitioner has an alternate identity of Amadou Thiandella Sall and that this information was forwarded to the Consul General in Washington, DC for the issuance of a travel document. (Id. at PageID 29-30).

         ICE subsequently received a travel document issued by the government of Senegal for petitioner's removal under his alternate identity, Amadou Thiandella Sall. (Doc. 17-1, Williams Decl. at PageID 82). The document is valid from February 6, 2018 until March 8, 2018. On February 6, 2018, petitioner was scheduled to be removed from the United States on a commercial flight from New York, New York to Dakar, Senegal. (Id.). However, the scheduled removal did not take place. ICE Officer Williams avers that petitioner refused to board the scheduled flight and that ICE will attempt to remove him a second time on another commercial flight with an officer escort. Williams further avers that “[t]here are currently no impediments to Bachir's removal beyond his own refusal to board his scheduled removal flight” and he believes “that it is significantly likely that Bachir can and will be removed from the United States in the reasonably foreseeable future.” (Id.).


         Petitioner commenced the instant habeas corpus action on August 30, 2017, prior to the discovery of petitioner's alternate identity, issuance of travel documents, and ICE's attempt to remove him to Senegal. (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, 533 U.S. 678 (2001). He also claims that his continued detention violates his federal due process rights.

         Respondent has filed a return of writ, arguing that petitioner has not met his burden to show that there is no significant likelihood of removal in the reasonably foreseeable future. (Doc. 8).

         III. 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 ...

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