Opinion
Case No. 05CV2342 IEG (WMc).
April 13, 2006
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 (Doc. No. 1.)
Presently before the Court is petitioner Gurudayal Singh's ("petitioner") petition for writ of habeas corpus pursuant to 28 U.S.C. section 2241. (Doc. No. 1.) Petitioner challenges his custody by the United States Immigration and Customs Enforcement ("ICE"), part of the Department of Homeland Security ("DHS"), which is detaining petitioner pending efforts to remove him to India. Petitioner does not challenge his removability determination, but rather seeks to be released from custody under supervised conditions. For the following reasons, the Court denies petitioner's petition.
BACKGROUND
Petitioner was born in India on April 15, 1979. (Traverse at 2.) On or about October 13, 1995, petitioner entered the United States at or near Blaine, Washington without inspection. (Return at 2.) On January 17, 1997, petitioner applied for asylum. (Id., citing Exhibit B, Application for Asylum or Withholding Deportation.) On August 5, 1998 ICE served petitioner with notice that it was initiating removal proceedings against him as he was an alien present in the United States without being admitted or paroled. (Id., citing Exhibit A, Notice to Appear.) On December 14, 1998, petitioner failed to appear for his hearing in immigration court, and the immigration judge ordered him removed to India. (Id., citing Exhibit E, Order of the Immigration Judge.) Petitioner did not seek relief from the order of removal with either the Board of Immigration Appeals or in the United States Court of Appeals for the Ninth Circuit. (Traverse at 2.) Petitioner's order of removal became final on December 14, 1998. (Id.)
Respondents note that on "March 1, 2003, the new Department of Homeland Security subsumed the former Immigration and Naturalization Service (INS), which was divided into several divisions, including" ICE. (Return at 2, n. 2.) Throughout their return respondents refer to the INS as ICE for ease of reference, the Court does the same.
On April 20, 1999, a jury convicted petitioner of three felony counts of assault with a deadly weapon. (Return at 3.) On June 10, 1999, petitioner was sentenced to three terms of six years in prison for each of the three felony offenses, and three two year terms for gang related crimes, all to be served concurrently. (Id.) In July of 1999 ICE filed a detainer with the California Department of Corrections asking that it be notified at least 30 days prior to petitioner's release, and giving notice to the Department that an investigation had been initiated to determine whether petitioner was subject to deportation. (Exhibit I ISO Traverse, Detainer.) On March 15, 2005, an ICE agent interviewed petitioner and it was subsequently determined that upon release from state custody, petitioner would be transferred to DHS custody. (Return at 3, citing Exhibit J, Record of Deportable/Inadmissable Alien.) On May 31, 2005, petitioner was transferred to DHS custody.
Previously, on October 1, 1998, petitioner was convicted of two felony counts of assault with a deadly weapon but his sentence was suspended in favor of three years probation. (Traverse at 2 n. 2.)
On June 20, 2005, ICE submitted a written request to the Consulate General of India for issuance of petitioner's travel documents. (Return at 3.) On June 23, 2005, the Consulate General acknowledged the request for petitioner's travel documents. (Id.) Deportation Officer Andy Padilla followed up with the Consulate in July, September, November, and December 2005, and again in January 2006 regarding the status of the travel documents request. (Appendix 1 ISO Traverse, collection of emails between Officer Padilla and the Indian Consulate and Inter-Office Memorandum.) On January 12, 2006, the Consulate informed the federal government that it had no verification regarding petitioner's travel documents. (Appendix 3 ISO Traverse, email from the Indian Consulate.) On February 27, 2006, the Consulate responded to an email from petitioner's counsel explaining that it had yet to receive clearance from the Indian authorities, and informed counsel that if she could provide names and telephone numbers of petitioner's family in India the Consulate could "hasten" the inquiry. (Appendix 4ISO Traverse, email from the Indian Consulate in response to counsel's inquiry.)
In the interim, on September 22, 2005, ICE informed petitioner that it would continue his detention based on his criminal convictions for offenses involving violence, because ICE considered him a threat to the community, and because ICE planned to secure his travel documents in the foreseeable future. (Return at 4, citing Exhibit Q, Decision to Continue Detention.) On November 10, 2005, ICE sought the assistance of the Headquarters Post Order Detention Unit ("HPODU"). (Return at 4.) On November 30, 2005, the San Diego Field Office transferred custody jurisdiction to the HPODU. (Id.) On December 14, 2005, HPODU informed petitioner that it had decided to continue his detention because of his criminal convictions and because it expected a travel document would issue shortly allowing for removal in the reasonably foreseeable future. (Id., citing Exhibit S, Decision to Continue Detention.)
On December 23, 2005, petitioner filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. section 2241 alleging that his ongoing detention is unlawful because there is no evidence he will be removed in the foreseeable future. (Doc. No. 1.) On February 13, 2006, respondents filed a return. (Doc. No. 7.) On March 1, 2006, petitioner filed a traverse. (Doc. No. 10.) The matter is now fully briefed, and the Court finds it appropriate for disposition without oral argument pursuant to Local Rule 7.1(d)(1).
DISCUSSION
A. Legal Standard
Under 8 U.S.C. § 1231, the statute authorizing detention of aliens during the post-removal period, an alien who committed a crime and was, as a result, found deportable, "may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision." 8 U.S.C. § 1231(a)(6) (1999). The statute gives the Attorney General ninety days to effect removal, during which time detention is mandatory. 8 U.S.C. § 1231 (a)(2).See also Zadvydas v. Davis, 533 U.S. 678, 682 (2001). After 90 days, the Attorney General has the discretion to detain an alien who:
is [1] inadmissible . . . [or] [2] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons if security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal. 8 U.S.C. § 1231 (a)(6).See also 8 C.F.R. § 241.4(a) (2002) (providing a non-exhaustive list of factors, including criminal history, that the district director may consider when determining whether to continue an alien's detention).
In Zadvydas and its companion case Ma v. Reno, 553 U.S. 678 (2001), the petitioners faced indefinite detention by the INS because their native countries would not cooperate with the INS's efforts to repatriate them. Zadvydas, 533 U.S. at 685-686. The Court found that an indefinite detention of aliens admitted to the United States but subsequently ordered removed "would raise serious constitutional concerns," and, thus, held that implicit in the statute is a "reasonable time" limitation. Zadvydas, 533 U.S. at 682.
The Court in Zadvydas set forth an analysis for determining the reasonableness of post-removal detention. Id. at 699-701. The Court must evaluate whether the detention period exceeds the time reasonably necessary to secure removal, measuring reasonableness in terms of the statute's purpose of assuring the alien's presence at the time of removal. Id. at 699. If removal is not reasonably foreseeable, continued detention should be found unreasonable and not authorized by statute. Id. The alien's release "may and should," in that case, "be conditioned on any of the various forms of supervised release that are appropriate in the circumstances." Id. at 700.
To provide further guidance to reviewing courts, the Zadyvas court ruled that six months is a presumptively reasonable period of detention. Id. at 701. After six months, if an alien provides "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future," the burden shifts to the government to rebut the presumption of unreasonableness. Id. The Court explained that the six-month presumption does not mandate that every alien not removed be released after six months; an alien may be detained until it is determined that there is no significant likelihood of removal "in the reasonably foreseeable future." Id.
B. Legal Analysis
Petitioner has been in DHS custody awaiting removal for well over six months. The inquiry is now whether petitioner has shown that there is no significant likelihood of removal in the reasonably foreseeable future. (Id.) If petitioner has made such a showing, respondents may rebut the showing and detention may continue. (Id.) However, if respondents fail to do so, continued detention is unreasonable and petitioner must be released. See Zadvydas, 533 U.S. at 700.
As of April 13, 2006, petitioner has been in custody for ten months and fourteen days.
Petitioner asserts that his lengthy detention, combined with the failure of the Indian government to provide travel documents, shows that there is no significant likelihood of removal in the reasonably foreseeable future. Petitioner also argues that respondents have not come forward with compelling evidence to defeat his prima facie showing of unreasonableness. (Traverse at 4-5.) Respondents contend that removal is reasonably foreseeable because: (1) petitioner's travel documents are being processed by the Indian Consulate; (2) federal employees expect to negotiate repatriation for petitioner; (3) ICE agents are actively pursuing the removal and communicate regularly with the Indian consulate; (4) in fiscal year 2004 ICE successfully repatriated 554 individuals to India; and (5) there are no institutional barriers to repatriation. (Return at 7.)
To determine whether detention past the six month mark is reasonable, the courts may consider whether any institutional barriers prevent a removal, whether the government has been able to secure travel documents from the petitioner's home country, and whether and what sort of progress is being made toward removing petitioner. Jardines-Guerra v. Ashcroft, 262 F.Supp.2d 1112, 1115 (S.D. Cal. 2003); Khan v. Fasano, 194 F.Supp. 2d 1134, 1137 (S.D. Cal. 2001). No one factor is dispositive.Zadvydas, 533 U.S. at 674-675. For example, in Khan, the Court denied petitioner's petition because: (1) ICE had previously had success in repatriating Pakistanis, therefore negating any argument about institutional barriers affecting his repatriation; (2) travel documents had been requested for petitioner and the pertinent officials from both countries were scheduled to meet about petitioner's removal; and (3) a mere showing of a lack of progress in obtaining travel documents was insufficient to meet the burden placed on a petitioner to show that there is "no significant likelihood of removal." Kahn, 194 F.Supp. 2d at 1137.
Applying the aforementioned considerations the Court is persuaded that petitioner's removal is reasonably foreseeable. First, there are no institutional barriers to petitioner's removal. In 2004 over 500 individuals were successfully repatriated to India. Plaintiff argues that successfully deporting others to India has no relevance as to how long it may take to deport him. (Traverse at 5.) However, neither does the statistic prove that petitioner's removal is not reasonably foreseeable. To the contrary, that the United States successfully repatriated so many in 2004 suggests that petitioner will also soon be removed.
Second, while the government has not yet received travel documents for petitioner, the record indicates it is not for lack of effort. Since June of 2005 federal officers have been in contact with the Indian Consulate to finalize petitioner's repatriation. (Exhibit M, ISO Return, Travel Document Request.) Third, respondents' lack of progress in actually obtaining the documents is not a reason alone to grant habeas relief. Based on email exchanges between federal officers, the Indian Consulate, and petitioner's counsel it is clear that the only barrier to petitioner's removal is the Indian government's approval. (Appendix 4, ISO Traverse, email between Consulate and Counsel.) Therefore, based on the facts in the record, approval of petitioner's travel documents is within the reasonably foreseeable future and ongoing detention is permissible.
On April 4, 2006, petitioner submitted a supplemental declaration to his traverse. (Doc. No. 14.) In his declaration petitioner states that "on or about August 9th, [2005], officials from the Indian Consulate went" to his parents home "in India to confirm that in fact I was their son and that I was in fact a citizen of India." (Gurudayal Singh Decla. ISO Traverse ¶ 3.) Despite petitioner's argument to the contrary, this is further evidence that petitioner's removal is in the reasonable foreseeable future.
In Ma v. Ashcroft, 257 F.3d 1095, 1103 (9th Cir. 2001), on remand from Zadvydas, the Court noted that the petitioner's administrative record gathered to determine whether he should be released pending removal included information about the petitioner's "supportive" family, his ability to assist his elderly handicapped father if released, his efforts to convince his younger brother to avoid gang activity, and that his older brother would employ him upon release. In sum, there were substantial indicators that the petitioner would abide by conditions of supervised release. The Court notes that in the instant case, the record as presented to the Court, is devoid of any indication that petitioner would be released to an equally stable environment.
CONCLUSION
For the reasons stated herein, the Court DENIES petitioner's petition for habeas corpus relief. However, petitioner may not be kept in detention indefinitely. Zadvydas, 533 U.S. at 689. However, petitioner may not be kept in detention indefinitely.Zadvydas, 533 U.S. at 689. Therefore, the petition is dismissed without prejudice and the Court grants petitioner leave to refile his petition in three (3) months time from the date this order is stamped "filed," if his removal has not been effectuated. Kahn, 194 F.Supp. 2d at 1138.IT IS SO ORDERED.