United States District Court, S.D. Ohio, Eastern Division
Algenon L. Marbley Judge.
REPORT AND RECOMMENDATION
CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE.
a citizen of Gambia, has filed this Petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 seeking
immediate release from the custody of Immigration and Customs
Enforcement (“ICE”). This matter is before the
Court on the Petition, Respondent's Motion to Dismiss and
Return in Opposition, Petitioner's Response and
Supplemental Memorandum Opposing the Motion to Dismiss and
Return in Opposition, and Respondent's Supplemental
Memorandum Supporting the Motion to Dismiss and Return in
Opposition. For the reasons that follow, it is
RECOMMENDED that this action be
DISMISSED and that Petitioner's Motion
for an Immediate Stay of Removal (ECF No. 2) be
and Procedural History
is a citizen of Gambia. Petitioner indicates that he has been
in the custody of United States Immigration and Customs
Enforcement (“ICE”) since on August 27, 2016,
where he has remained since that time. On March 24, 2017,
Petitioner was ordered to be removed from the United States
to Gambia. (Petition, ECF No. 1, PAGEID # 3; ECF No. 7-3,
PAGEID # 43.) Petitioner did not appeal the order of removal.
He asserts that his continued detention violates Zadvydas
v. Davis, 533 U.S. 678 (2001), and Clark v.
Martinez, 543 U.S. 371 (2005), because there is no
significant likelihood of his removal from the United States
in the reasonably foreseeable future. It is the position of
the Respondent that this action should be dismissed.
response, Respondent has submitted the Declaration of
deportation officer Kenneth Williams, indicating that
Petitioner has been in the custody of ICE since August 31,
2016, when he entered the United States without proper
documentation to permit lawful entry. (ECF No. 7-1, PAGEID #
38-39.) On March 24, 2017, the Immigration Court issued
Petitioner's Order of removal. (ECF No. 7-3, PAGEID #
43.) On April 10, 2017, federal officials submitted a travel
document request to the Gambian embassy. (ECF No. 7-1, PAGEID
# 39.) On July 11, 2017, Petitioner advised the Gambian
embassy that he was born in Sierra Leone. (Id.) This
information contradicts Petitioner's August 29, 2016
sworn statement to the Department of Homeland Security
indicating that he was born in Allunharen, Gambia. (ECF No.
7-4, PAGEID # 46.) ICE, however, provided information
regarding Petitioner's Gambian passport, including the
passport number and expiration date, to the Gambian embassy
for issuance of travel documents. (ECF No. 7-1, PAGEID # 39.)
also has submitted the Declaration of deportation officer
Timothy Hinman, indicating that, on May 16, 2018, Gambia
issued Petitioner emergency travel documents for his removal
from the United States. (ECF No. 14-1, PAGEID # 76.) A copy
of the Emergency Travel Document is also attached. (PAGEID #
78.) According to Hinman, Petitioner's removal travel is
currently being arranged, and it is significantly likely that
he will be removed from the United States in the reasonably
foreseeable future. (ECF No. 14-1, PAGEID # 76.)
to 28 U.S.C. § 2241(a) a writ “of habeas corpus
may be granted by the Supreme Court, any justice thereof, the
district courts and any circuit judge within their respective
jurisdictions.” “Section 2241 affirmatively
grants federal courts the power to issue writs of habeas
corpus to prisoners being held ‘in violation of the
Constitution or laws or treaties of the United
States.'” Rice v. White, 660 F.3d 242, 249
(6th Cir. 2011) (quoting § 2241(c)). The United States
Supreme Court has affirmed the jurisdiction of courts to
consider habeas claims arising out of immigration detention.
See Ly v. Hansen, 351 F.3d 263, 266 (6th Cir. 2003)
(citing Zadvydas, 533 U.S. at 688). “Despite
statutory restriction of court review regarding many
immigration matters, a petition for writ of habeas corpus
under section 2241 is appropriate for raising statutory and
constitutional challenges to post-removal detention by the
ICE.” Estenor v. Holder, No. 1:11-cv-743, 2011
WL 5572596, at *2 (W.D. Mich. Oct. 24, 2011) (citing
Zadvydas, 533 U.S. at 688; Ly, 351 F.3d at
266). See also Jiang Lu v. U.S. ICE, 22 F.Supp.3d
839, 841 (N.D. Ohio 2014) (“Federal courts have habeas
jurisdiction to examine the statutory and constitutional
bases for an immigration detention unrelated to a final order
of removal.” (citing Demore v. Kim, 538 U.S.
510, 517-18 (2003))).
order of removal becomes administratively final, the Attorney
General “shall detain” and remove the alien
within ninety days. Mulla v. Adducci, 178 F.Supp.3d
573, 575 (E.D. Mich. 2016) (citing 8 U.S.C. §
1231(a)(1)(A), (a)(2)). However, the government may detain an
inadmissible or criminal alien beyond the ninety-day
statutory removal period. See id; 8 U.S.C. §
1231(a)(6); Jiang Lu, 22 F.Supp.3d at 841. In
Zadvydas, the Supreme Court interpreted this
provision to authorize the continued detention of the alien
only as long as “reasonably necessary” to
effectuate the alien's removal. Jiang Lu, 22
F.Supp.3d at 842 (citing Zadvydas, 533 U.S. at 689,
699; Clark, 543 U.S. at 373). The detention of an
alien subject to removal due to a criminal conviction will be
presumptively reasonable for up to six months.
Mulla, 178 F.Supp.3d at 576 (citing
Zadvydas, 533 U.S. at 701). “After this
6-month period, 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.” Zadvydas, 533 U.S. at 701.
“Once removal is no longer reasonably foreseeable,
continued detention is no longer authorized by
statute.” Id. at 699. “[T]he Supreme
Court has clarified that the Zadvydas due process
analysis applies only if a danger of indefinite detention
exists and there is no significant likelihood of removal in
the reasonably foreseeable future.” Jian Lu,
22 F.Supp.3d at 843 (citing Demore v. Kim, 538 U.S.
510, 531 (2003)). “Merely alleging that a date for
travel has not yet been set, is insufficient to demonstrate
indefinite detention.” Id. Further,
“courts have uniformly refused to find a constitutional
violation and/or have concluded that the removal period is
tolled or suspended by an alien's refusal to cooperate or
conduct which prevents or thwarts his removal from the United
States. See Mohamed v. U.S. Attorney Gen., No.
1:17-cv-573, 2018 WL 1904293, at *4 (S.D. Ohio Mar. 8, 2018)
(citations omitted). In Clark v. Martinez, 543 U.S.
371 (2005), Zadvydas was extended to apply to
inadmissible aliens. See Joseph v. Holder, No.
11-11118, 2011 WL 2893070, at *2 (E.D. Mich. July 20, 2011).
here, Petitioner has failed to provide “good reason to
believe that there is no significant likelihood of removal in
the reasonably foreseeable future, ” Zadvydas,
533 U.S. at 701, such that his continued detention violates
the Constitution or laws of the United States. Moreover, the
information Respondent submitted to the Court reflects that
Petitioner's removal is significantly likely to occur in
the immediate and foreseeable future. In particular, the
United States has obtained Petitioner's emergency travel
document from Gambia for the purpose of Petitioner's
removal from the United States, and the record reflects that
petitioner's removal travel is currently being arranged.
The undersigned therefore concludes that Plaintiff has not
demonstrated his entitlement to habeas corpus relief under 28
U.S.C. § 2241 and therefore RECOMMENDS
that this action be DISMISSED.
asserts that the Court should dismiss this action under Rule
12(b)(1) of the Federal Rules of Civil Procedure as moot
because there remains no relief available to the Petitioner
short of his escort onto a plane. (See Supp. Mem.
Supporting Mot. to Dismiss, ECF No. 14, PAGEID # 74.) A
§ 2241 petition is subject to dismissal for lack of
subject matter jurisdiction as moot, where a habeas
petitioner who challenges his continued allegedly illegal
detention under Zadvydas is deported during the
pendency of proceedings, because there no longer exists an
actual case or controversy under Article III, § 2 of the
Constitution. See Conteh v. United States Attorney
Gen., No. 2:17-cv-0958, 2018 WL 1587452, at *1-2 (S.D.
Ohio Apr. 2, 2018) (citing Zundel v. Berrong, 106
Fed.Appx. 331, 334-35 (6th Cir. 2004) (citing Spencer v.
Kemna, 523 U.S. at 7) (other citations omitted). Here,
however, the record does not reflect that Petitioner has been
removed from the United States. To the contrary, as of June
14, 2018, Petitioner complained that he remained illegally
incarcerated at the Morrow County Jail. (ECF No. 16.) The
undersigned acknowledges, however, that this Court lacks the
authority to stay deportation proceedings in the context of a
habeas corpus petition. See Adames v. Hinton, No.
2:16-cv-00963, 2016 WL 7386348, at *3 (S.D. Ohio Dec. 21,
2016) (citing Elcheikhali v. Holder, No.
4:10-cv-2333, 2010 WL 4818390, at *2 (N.D. Ohio Nov. 22,
2010) (the REAL ID Act stripped this Court of its
jurisdiction to issue such a stay, as well as the
Petitioner's right to receive one from this Court)
(citing 8 U.S.C. § 1252(a)(2)(C))). It is therefore
RECOMMENDED that Petitioner's Motion for
an Immediate Stay of Removal (ECF No. 2) be
foregoing reasons, it is RECOMMENDED that
this action be DISMISSED and that
Petitioner's Motion for Motion for an ...