Case No. 4:06-cv-00037-MP-WCS.
September 7, 2006
This matter is before the Court on Doc. 25, Report and Recommendation of the Magistrate Judge, which recommends that Petitioner Michel's petition for writ of habeas corpus be granted. The Magistrate Judge filed the Report and Recommendation on Thursday, July 27, 2006. The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), the Court must make a de novo review of those portions to which an objection has been made. In this instance, however, no objections were made.
The Court agrees with the Magistrate that because there is no significant likelihood of the removal of Petitioner Michel in the foreseeable future, his continued detention is no longer authorized. Petitioner has been in Respondents' custody since July 20, 2005. Since February 1, 2005, Respondents have unsuccessfully attempted on five separate occasions to obtain travel documents for Petitioner from the Consulate of Haiti. The Court agrees with the Magistrate that the Petitioner has made a prima facie case that his continued detention is no longer authorized under Zadvydas v. Davis, 533 U.S. 678 (2001). Petitioner alleges that he has been held in custody longer than six months, that the Haitian government is "in turmoil and unstable," and that the government "refuses to accept certain deportees with criminal convictions." Doc. 1 at 9. The Respondents have presented no evidence to rebut these allegations. The fact that the United States government has received no answer from the Haitian government to five separate inquires over the last nineteen months for Petitioner's travel documents testifies to the unlikelihood of removal any time soon.
The presumptively reasonable period of detention under 8 U.S.C. § 1231(a)(6) has passed, and the Respondents have failed to rebut the Petitioner's showing that that there is no significant likelihood of removal in the reasonably foreseeable future. Thus, continued detention of Petitioner is unauthorized. Therefore, having considered the Report and Recommendation, I have determined that the Report and Recommendation should be ADOPTED. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. Petitioner Edner Michel's petition for a writ of habeas corpus, Doc. 1, filed pursuant to 28 U.S.C. § 2241, is GRANTED.
2. Respondents are ordered to release Petitioner from custody under such terms and conditions deemed necessary to keep Respondents advised of Petitioner's whereabouts pending his removal and in compliance with the requirements of 8 U.S.C. § 1231(a)(3).
DONE AND ORDERED