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In Idowu v. Ridge, No. 3:03-cv-1293-R, 2003 WL 21805198 (N.D. Tex. Aug. 4, 2003) the court rejected a similar argument made by petitioner.
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No. 3:03-CV-1293-R
August 4, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. By Order of Reference dated July 15, 2003, the District Judge referred petitioner's Application for Temporary Restraining Order for hearing, if necessary, and determination or recommendation. A hearing was held on the Application on July 25, 2003. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
Petitioner, a native and citizen of Nigeria currently detained by federal immigration authorities in Dallas, Texas, filed this action pursuant to 28 U.S.C. § 2241 to challenge his indefinite detention in contravention of Zadvydas v. Davis, 533 U.S. 678 (2001). Named respondents are Tom Ridge, Secretary of the Department of Homeland Security; Anne Estrada, Interim District Direct of Bureau of Immigration and Customs Enforcement (BICE); and John Ashcroft, United States Attorney General [hereinafter collectively referred to as the government]. The following facts were gleaned from the petition filed in this action:
On August 30, 1995, petitioner became a United States lawful permanent resident. On January 7, 2000, he pled guilty to theft and securing the execution of documents by deception, and received a two-year sentence probated for five years. On March 5, 2002, he was sentenced to 180 days incarceration for a misdemeanor assault conviction that was probated to 24 months. On March 6, 2002, the government took him into immigration custody. On April 23, 2002, a United States Immigration Judge (IJ) ordered petitioner removed from the United States. On September 23, 2002, the Board of Immigration Appeals affirmed the decision of IJ, thus making the order of removal final.
On June 9, 2003, petitioner filed the instant petition under § 2241. He contends that his protracted detention is unlawful and contravenes 8 U.S.C. § 1231 (a)(6) and the six-month presumptively reasonable period of detention recognized in Zadvydas. He further contends that his detention violates his substantive and procedural due process rights. On June 16, 2003, the Court directed the government to file an answer within sixty days.
On July 7, 2003, before the government filed its answer, petitioner filed an Application for Temporary Restraining Order (TRO) which incorporates his underlying petition as support for obtaining immediate injunctive relief. He also contends that he has satisfied the requirements for obtaining a preliminary injunction set forth in Morgan v. Fletcher, 518 F.2d 236 (5th Cir. 1975).
On July 25, 2003, the Court heard argument and took testimony and other evidence regarding the matters before it. Petitioner appeared in person and through counsel. At the hearing, counsel for petitioner reiterated the contentions of the underlying petition, and argued that setting appropriate conditions of release is the only acceptable remedy for the constitutional violations. She conceded that the remedy sought in the TRO is the same as that sought in the underlying petition. Nevertheless, she argued that she properly filed for a TRO in view of the need for expeditious resolution of the matters raised in the petition and the irreparable injury caused by the allegedly unlawful detention. She further argued that the "absolute clear" violation of due process and deprivation of petitioner's liberty interest constitutes exceptional or extraordinary circumstances that warrant release on bail.
The government called Agent Christopher Henfling to provide sworn testimony at the hearing. Agent Henfling provided the following time line of events gathered mostly from a computer generated print-out that shows all activity in petitioner's immigration case:
October 9, 2002: first contact with petitioner;
October 10, 2002: petitioner refused to cooperate by failing to complete forms that help the foreign consulate obtain travel documents;
October 29, 2002: government requested travel documents from Nigeria;
December 12, 2002: government received travel documents from Nigeria;
December 24, 2002: government received notice of state arrest warrants;
December 26, 2002: government cancelled travel arrangements to return petitioner to Nigeria so that petitioner could be returned to state custody;
January 7, 2003: petitioner taken into state custody;
January 13, 2003: scheduled departure date (cancelled December 26, 2002);
July 23, 2003: became aware that petitioner was back in federal custody;
July 24, 2003: rescheduled departure date for petitioner's removal to August 18, 2003;
August 18, 2003: petitioner scheduled to be removed to Nigeria.
The government could not establish when petitioner was returned to federal custody. Nevertheless, it appears that petitioner is presently detained in federal custody by governmental immigration authorities.
The government offered into evidence, without objection, an itinerary that shows that petitioner is scheduled to depart the United States for Nigeria on August 18, 2003. The Agent testified that there were no obstacles to petitioner's return to his native Nigeria. He also testified that Nigeria regularly allows citizens to return under the same process that has occurred in this case. The Agent was "pretty confident" that petitioner would indeed be returned to Nigeria on August 18, 2003, as currently scheduled.
At the close of the hearing, the Court took the matters raised in this case under advisement. For the reasons that follow, the Court recommends that the petition and request for TRO be denied.
II. UNLAWFUL DETENTION
Petitioner claims that the government is unlawfully detaining him in violation of 8 U.S.C. § 1231(a)(6) and Zadvydas. Section 1231(a)(1)(A) provides that the government has a 90-day "removal period" to remove an alien ordered removed from the United States. However, that "period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal subject to an order of removal." 8 U.S.C. § 1231 (a)(1)(C). During the "removal period" the alien must be detained. See id. § 1231(a)(2). After the removal period, the government may detain the alien or release him subject to conditions of release. See id. § 1231(a)(6). In Zadvydas, the Supreme Court held that aliens may be detained under § 1231(a)(6) only for "a period reasonably necessary to bring about that alien's removal from the United States." 533 U.S. at 689 (holding that "the statute, read in light of the Constitution's demands, limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States [and] does not permit indefinite detention).
Recognizing that its holding would lead to difficult judgment calls in the courts, the Supreme Court, "for the sake of uniform administration in the federal courts" recognized a six-month "presumptively reasonable period of detention." Id. at 700-01. While not entirely clear from the Supreme Court opinion, the Fifth Circuit, on remand, interpreted the presumptively reasonable period to "apparently" commence from "the beginning of the removal period." See Zadvydas v. Davis, 285 F.3d 398, 403 (5th Cir. 2002). Other courts, including the Northern District of Texas, have similarly interpreted the Supreme Court decision and have commenced the six-month period from the date the final order of deportation became final. See, e.g., Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003); Akinwale v. Ashcroft, 287 F.3d 1050, 1052 n. 3 (11th Cir. 2002); Ma v. Ashcroft, 257 F.3d 1095, 1102 n. 5 (9th Cir. 2001); Habtegaber v. Jenifer, 256 F. Supp.2d 692, 696 (E.D. Mich. 2003); Acosta v. Ashcroft, No. 3:02-CV-944-H, 2003 WL 79340, at *2 (N.D. Tex. Jan. 7, 2003) (Judge Sanders accepting findings and recommendation of Magistrate Judge Sanderson); Okwilagwe v. INS, No. 3:01-CV-1416-BD, 2002 WL 356758, at *2 (N.D. Tex. Mar. 1, 2002) (memorandum opinion and order of Magistrate Judge Kaplan), but see, Kendy v. Ashcroft, No. 3:03-CV-0066-H, 2003 WL 21448380, at *2 (N.D. Tex. May 14, 2003) (Judge Sanders accepting findings and recommendation of Magistrate Judge Kaplan which holds that, under Zadvydas, "[d]etention for up to six months after expiration of the 90-day period is `presumptively reasonable'"). Despite the mixed signals given by the Supreme Court, this Court construes the presumptive six-month period as including the 90-day removal period.
Compare 553 U.S. at 689 (speaking in terms of post-removal-period detention, i.e. after the initial 90-day period) with id. at 700-01 (apparently limiting the presumptive period to a total six-month period, including the initial 90-day removal period).
Notwithstanding the government's argument that the six-month presumptively reasonable period of detention commenced in January, not September, due to the remand to state custody, the Court assumes for purposes of this Application that the six-month period commenced on September 23, 2002, and that it expired before petitioner filed his federal petition on June 9, 2003. The mere fact that the presumptive period has expired does not necessarily entitle petitioner to habeas relief, however. The Supreme Court addressed such a scenario in Zadvydas, stating:
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. And for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.533 U.S. at 701. Thus, the Court must still determine whether there is a significant likelihood of removal in the reasonably foreseeable future.
A. Petitioner's Burden
Petitioner claims that the government cannot remove him in the foreseeable future. He claims that he has been in continuous federal custody since March 6, 2002. He further claims that the government has contacted him only twice since his order of removal became final in September of last year. He argues that the "complete communication failure" of the government "manifests dereliction to timely pursue removal efforts and to review custody determinations." He contends that he did not receive any notice of mandated detention review within the 90-day removal period as contemplated by 8 C.F.R. § 241.4 (h), nor the notice required by 8 C.F.R. § 241.4 (d) and (k)(2)(i). At the hearing before the Court, counsel identified three things that exhibit a need to release petitioner from governmental detention: (1) no post-order-of-removal proceedings; (2) no communication between the government and petitioner; and (3) no explanation for his continued detention.
Such claim is contrary in uncontroverted testimony elicited at the hearing that petitioner returned to state custody in January 2003.
On the facts presented by petitioner, the Court does not find that he has carried his burden to show that there is good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future. Nothing indicates that petitioner has made any effort to determine the prospects of his removal. Even assuming that petitioner is correct that he has received no explanation for his continued detention, and that there has been a lack of post-order-of-removal proceedings and communication by the government, such governmental inaction hardly qualifies as good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.
To carry his burden, petitioner must present something beyond speculation and conjecture. To shift the burden to the government, petitioner must demonstrate that "the circumstances of his status" or the existence of "particular individual barriers to his repatriation" to his country of origin are such that there is no significant likelihood of removal in the reasonably foreseeable future. See Fahim v. Ashcroft, 227 F. Supp.2d 1359, 1366 (N.D. Ga. 2002). A "lack of visible progress" in his immigration case "does not in and of itself meet his burden of showing that there is no significant likelihood of removal." See id. "[I]t simply shows that the bureaucratic gears of the [federal immigration agency] are slowly grinding away." Khan v. Fasano, 194 F. Supp.2d 1134, 1137 (S.D. Cal. 2001).
In this instance, petitioner has presented nothing concrete upon which the Court can find good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future. He has presented nothing about his particular status or identified any specific individualized barriers to his return to Nigeria. He has pursued no efforts to ascertain such barriers or the likelihood of his removal. He has submitted no tangible evidence to support a belief that there is no significant likelihood of removal in the reasonably foreseeable future. See Rajigah v. Conway, ___ F. Supp.2d ___, ___, No. CV03-1717 (RJD), 2003 WL 21382578, at *7-8 (E.D.N.Y. June 12, 2003) (finding that the submission of a letter from an appropriate ambassador which indicates "that the embassy will not issue travel documents to him both because of his pending judicial proceedings and because of his inability to receive adequate medical treatment for his eye disease" in conjunction with medical reports sufficed to carry the petitioner's burden, whereas the government's rebuttal evidence was "speculative at best"). Speculation and conjecture as to reasons for governmental inaction do not suffice to carry petitioner's burden. Petitioner is entitled to no habeas relief on his Zadvydas claim. B. Government's Rebuttal Evidence
The Court also notes that " Zadvydas does not save an alien who fails to provide requested documentation to effectuate his removal. The reason is self-evident: the detainee cannot convincingly argue that there is no significant likelihood of removal in the reasonably foreseeable future if the detainee controls the clock." Pelich v. INS, 329 F.3d 1057, 1060 (9th Cir. 2003). In this instance, the government presented uncontradicted evidence that petitioner refused to complete travel paperwork in October 2002. The delay in removing petitioner could thus be caused at least in part on petitioner's uncooperativeness. At the very least, such uncooperativeness would extend the 90-day removal period. See 8 U.S.C. § 1231 (a)(1)(C).
Petitioner's Zadvydas claim would also fail even were the Court to find that petitioner has sufficiently carried his burden and shown good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future. The government presented persuasive evidence that petitioner will be removed from the United States on August 18, 2003. It has thus shown that petitioner will be removed in the reasonably foreseeable future, and thus rebutted the "good reason" showing by petitioner. In view of petitioner's removal in approximately three weeks, there is no reason to release him from custody pending removal.
III. DUE PROCESS VIOLATION
Petitioner claims that the government has violated his procedural and substantive due process rights. However, pursuant to Zadvydas, petitioner's substantive "due process rights are not jeopardized by his continued detention as long as his removal remains reasonably foreseeable." See Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003). As already found, petitioner's removal is reasonably foreseeable. In fact, it is scheduled for August 18, 2003.
Furthermore, because petitioner in not entitled to release under Zadvydas, he is not entitled to release for the alleged violations of his procedural due process rights. The only relief petitioner seeks in this action is release. However, such relief is inappropriate for the alleged procedural due process violations. "Although a federal court has broad equitable powers to remedy constitutional violations, it must tailor the scope of injunctive relief to fit the nature and extent of the constitutional violation established." Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1041 (5th Cir. 1982). When no substantive due process violation has been established, release from detention seems an inappropriate remedy for alleged violations of the procedural protections afforded removable aliens such as petitioner. In addition, ordering the government to provide procedurally proper process to petitioner appears unnecessary at this time in view of his impending release in approximately three weeks.
IV. TEMPORARY RESTRAINING ORDER
Petitioner also seeks a TRO in this action. He states that his habeas petition shows that he has satisfied the standards set forth in Morgan v. Fletcher, 518 F.2d 236 (5th Cir. 1975) for obtaining a TRO. In Morgan, the Fifth Circuit Court of Appeals stated:
The function of a preliminary injunction is merely to preserve the status quo until the merits of a case can be adjudicated. . . . The four prerequisites are: (1) a substantial likelihood that [petitioner] will prevail on the merits, (2) a substantial threat that [petitioner] will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury to [petitioner] outweighs the threatened harm the injunction may do to [the government], and (4) that granting the preliminary injunction will not disserve the public interest.Id. at 239; see also, Enrique Bernat F., S.A. v. Guadalajara, Inc., 210 F.3d 439, 442 (5th Cir. 2000) (setting forth same four prerequisites).
In this instance, petitioner seeks a TRO not to preserve the status quo, but rather, to obtain expeditious resolution of his habeas petition. The Court need not determine the propriety of seeking a TRO in such instances. For the reasons stated herein, petitioner's claims do not entitle him to habeas relief. He thus cannot obtain a temporary restraining order.
V. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that petitioner's application for habeas corpus relief, brought pursuant to 28 U.S.C. § 2241, and his application for temporary restraining order be DENIED.