Opinion
Civil Action No. 02-30098-MAP
August 22, 2002
MEMORANDUM AND ORDER REGARDING RESPONDENT'S MOTION TO DISMISS (Docket No. 6)
The petitioner, a citizen of Nigeria who had been living in the United States as a lawful permanent resident, was convicted of conspiracy to distribute heroin in 1992. He competed his sentence and, on October 1, 2001, received an Order of Removal that he did not appeal. The petitioner has been held in custody awaiting deportation since October 1, 2001.
The Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001), recognized six months as a presumptive period of detention to permit the Government to remove an unwelcome alien. Detention of the alien beyond the six months would be barred where "there is no significant likelihood of removal in the foreseeable future. . . ." Id. at 2505.
The respondent has moved to dismiss this petition on the ground that, despite the petitioner's eleven-month detention to date, he cannot show lack of "significant likelihood of removal in the reasonably foreseeable future."
This court disagrees. The affidavit of the deportation officer supporting the motion to dismiss gives the court no assurance that removal will occur "in the reasonably foreseeable future." The affidavit confirms the lengthy period of time required by the Nigerian government to review requests for repatriation and implies that while these applications are "usually approved in the end," sometimes they may not be. The respondent's submission gives the court no confidence as to when, or even whether, the petitioner will ever be repatriated.
For this reason, the Motion to Dismiss is hereby DENIED. The respondent is ordered to submit a status report to this court by November 22, 2002, approximately ninety days from the date of this memorandum. If the petitioner has not been removed by that date, or the respondent is unable to present documented confirmation that the Nigerian government has agreed to his repatriation, the court will likely grant the petition for habeas corpus and order the respondent to release the petitioner upon appropriate conditions.