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