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accepting removal period suspension for three to four year period where alien lied about nationality, but rejecting suspension for period after alien admitted nationality
Summary of this case from Koljenovic v. AshcroftOpinion
CIVIL ACTION NO. 03-3320
September 16, 2003
MEMORANDUM AND ORDER
Currently before the Court is pro se petitioner Dennis Clark's Petition for Writ of Habeas Corpus (Docket No. 1), the Government's Response to Petition for Writ of Habeas Corpus (Docket No. 4), and Clark's Rebuttal to Government's Response to Petition for Writ of Habeas Corpus (Docket No. 6).
I. ISSUE PRESENTED
Dennis Clark is an alien seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3). He claims that his continued detention by the Bureau of Immigration and Customs Enforcement ("BICE") violates his Fifth Amendment due process rights, as refined in U.S. v. Zadvydas, 533 U.S. 678 (2001), for the detention of an alien following a final order of deportation. The Government responds that the petition must be denied because Clark's extended detention is entirely attributable to his failure to provide accurate personal information.
The Homeland Security Act of 2002 abolished the Immigration and Naturalization Service ("INS") and transferred all its functions to the newly created Department of Homeland Security. See The Department of Homeland Security Reorganization Plan, 8 U.S.C. § 542 (2003). As of March 1, 2003, the functions formerly performed by the INS and its officials have been transferred to the Bureau of Immigration and Customs Enforcement.
II. FACTUAL BACKGROUND
Dennis Clark ("Clark") has a long history with the Immigration and Naturalization Service ("INS"). Initial deportation proceedings began in April 1991 when Clark was serving time for a theft conviction. At that time, Clark made a sworn statement that he was born in Kingston, Jamaica, in 1967, that he was a citizen of Jamaica, and that he had entered the United States in 1979 through New York City. Clark was not deported at that time.
In July 1994 Clark entered INS custody and on September 28, 1994, an Immigration Judge entered a final order for Clark's removal. Clark was not deported and was eventually released from custody in October 1995 pending final removal. Upon release Clark resumed the criminal activity he had been engaged in prior to his initial arrest in 1991. INS records indicate numerous thefts and receipt of stolen property between 1996 and 1998, although there appear to be no convictions from that time period. Clark pleaded guilty to burglary and criminal trespass in 1998; he was convicted twice in 1990 for theft and receipt of stolen property; and he pleaded guilty to criminal attempt and theft in 1990.
On August 11, 1998, Clark again entered INS custody after his arrest by INS officials. He has remained in custody since that date.
From August 1998 through October 2002, the INS attempted to obtain travel documents for Clark from the Jamaican government. The INS based these attempts on Clark's April 1991 sworn statement that he was a Jamaican citizen. The first formal request for documents came on August 18, 1998, and a follow-up on March 10, 1999. In January 2000 the Philadelphia district office of the INS requested assistance from INS headquarters in Washington, B.C. Fruitless requests resumed in September 2002. Finally, via email on October 9, 2002, the INS received a response from Kingston stating that they had no record of a Dennis Clark and that some documentation regarding Clark's origin was required.
Meanwhile, Clark remained in custody. After two years in detention, on October 20, 2000, the INS ordered Clark released pending deportation and receipt of appropriate travel documents. Clark, however, was not released. After another eight months in detention, in June 2001, Clark received a Post-Order Custody Review and status hearing. At that time, Clark claimed to be a citizen of the United Kingdom, changing his earlier claim that he was a citizen of Jamaica. He also said he first entered the United States in 1971, at the age of four. He said the initial report from 1991 was incorrect. In his Rebuttal to the Government's Response to Petition for Writ of Habeas Corpus, Clark now claims that the 1991 statement in which he swore to Jamaican citizenship is a forgery.
The INS recommended that Clark be held in custody pursuant to the June 2001 status hearing. The interviewing officers determined Clark to be a flight risk based on his lack of credibility and determined him to be a danger to the community based on his prison behavior and previous drug use. Clark remained in custody without a status review through January 2003, another year and a half.
In the June 2001 report, the INS notes that Clark had not been convicted of any violent crime and was not considered to be of a violent nature. The INS officers based the conclusion on eight disciplinary citations Clark had received while in detention, two of which were for fighting.
Clark has maintained since his status hearing in June 2001 that he is a citizen of the United Kingdom. He has communicated from prison with the British Consulate-General in Houston, TX, and applied for a U.K. passport in July 2002.
Following a custody status review in January 2003, the INS informed Clark that it would not release him for failure to assist in obtaining a travel document. Specifically, the report states that Clark had failed to provide any documentation regarding his identity or citizenship to assist the INS in effecting his departure from the United States.
Clark filed his petition for habeas corpus before this Court on May 27, 2003, and on May 30, 2003, this Court enjoined the Government from deporting Clark until further notice.
III. LEGAL STANDARD
A. JurisdictionFederal district courts have jurisdiction to hear federal habeas corpus petitions pursuant to 28 U.S.C. § 2241(c)(3) (2003). Jurisdiction is limited to questions of law only, and does not extend to factual or discretionary determinations. See, e.g., Catney v. I.N.S., 178 F.3d 190, 195 (3d Cir. 1999). Therefore, the Court passes no judgment on the discretionary decisions made by the INS or BICE referenced in this opinion regarding Petitioner Dennis Clark. Jurisdiction is proper because Clark's petition does not challenge any discretionary decision of the government to keep him detained. See U.S. v. Zadvydas, 533 U.S. 678, 688 (2001). Rather, the challenge is to the authority of the government under the laws of the United States to keep him detained. "And the extent of that authority is not a matter of discretion." Id. Thus, judicial review here is proper.
B. Applicable Law
In deciding whether an alien's continued post-removal detention is within the statutory power of the BICE, "the habeas court must ask whether the detention in question exceeds a period reasonably necessary to secure removal." See Zadvydas, 533 U.S. at 699; Raiicrah v. Conwav, 268 F. Supp.2d 159, 163 (E.D.N.Y. 2003). The BICE has statutory power under 8 U.S.C. § 1231 to detain aliens who have been ordered removed. Section 1231(a)(1)(A) requires a 90 day "removal period," allotting the BICE 90 days to remove the alien from the United States. The removal period can extend beyond 90 days, and the alien can be kept in detention, if the Attorney General determines the alien to be a "risk to the community or unlikely to comply with the order of removal." 8 U.S.C. § 1231 (a)(6); see Raiicrah, 268 F. Supp.2d at 163 (setting forth statutory framework). The removal period can also be extended if the alien "fails or refuses to make a timely application in good faith for travel or other documents necessary to the alien's departure." 8 U.S.C. § 1231 (a) (1)(C); see Raiicrah, 268 F. Supp.2d at 163.
Based only on the face of the tolling statutes, post-removal period detention could extend indefinitely. However, the Supreme Court has limited post-removal period detention to a period reasonably necessary to bring about the alien's removal from the United States. See Zadvydas, 533 U.S. at 699 (reading post-removal period detention statutes in light of the Constitution's demands). The Court made clear that the statute "does not permit indefinite detention." Id. at 689-90 ("A statute permitting indefinite detention of an alien would raise a serious constitutional problem."). The Court recognized six months to be a presumptively reasonable detention period. See id. at 701. After the six month period, further detention is presumptively unreasonable if the alien can provide good reason to believe that removal is not reasonably foreseeable. See id. The government can then respond with evidence to rebut such a showing by the alien. See id.
According to the foregoing framework of both statutory and case law, the post-removal detention of an alien is no longer authorized by statute and is in violation of the Constitution if:
(1) the alien has been detained beyond the 90 day removal period; see 8 U.S.C. § 1231 (a)(1)(A);
(2) the alien has not frustrated government efforts to effect his removal such that the removal period is tolled; see 8 U.S.C. § 1231 (a)(1)(C);
(3) the alien has not been deemed a risk to the community or unlikely to comply with the removal order such that the removal period is tolled; see 8 U.S.C. § 1231 (a)(6);
(4) the alien can show good reason to believe that removal is not reasonably foreseeable; see Zadvydas, 533 U.S. at 699; and
(5) the government does not respond with evidence sufficient to rebut such a showing by the alien; see id.
III. DISCUSSION
A. The Removal Period1. Clark's cooperation with removal procedures The INS has clearly detained Clark longer than the statutory 90 day removal period. Thus, it falls upon the government to prove that the period should be tolled because of Clark's lack of cooperation or his efforts to thwart his own removal. See 8 U.S.C. § 1231(a)(1)(C). The government points out that Clark has provided "irreconcilably inconsistent information" regarding his nationality and how and when he entered the United States. See Gov't Response to Pet'r Writ at 8. Indeed, during his initial deportation proceedings in 1991 Clark swore he was a Jamaican citizen; then in an interview by INS officials in 2001 Clark swore to British citizenship. Further, Clark initially told INS officials he was born in Kingston, Jamaica, on March 30, 1967. Since 2001, Clark has maintained he was born on March 28, 1967, in London, England.
Despite those inconsistencies, the government's position is not persuasive. There is limited case law interpreting whether an alien is responsible for thwarting his own removal, and none of those cases are controlling of this court. The government cites Powell v. Ashcroft as illustrative. 194 F. Supp.2d 209 (E.D.N.Y. 2002). In that case, the United States District Court for the Eastern District of New York found that the alien Felix Powell acted to prevent his removal under 8 U.S.C. § 1231(a)(1)(C). See id. at 210-11. The court accordingly tolled the 90 day removal period and denied Powell's habeas corpus petition. Within a three year span, Powell provided the INS with no less than five different versions of his place of origin and how he entered the United States, and he claimed citizenship to three different countries. See id. Powell also gave the INS inconsistent statements regarding his name and even submitted inconsistent information to the court regarding his age upon entering the United States. See id. at 211. Here, petitioner Clark's actions to prevent his removal fall far short of Powell's actions.
Clark's actions and the government's response are more akin to those of Troy Ford in Ford v. Quarantillo, 142 F. Supp.2d 285 (D.N.J. 2001). Ford initially misinformed the INS about his country of origin. See id. at 588. Ford subsequently corrected the information, stating that he is from Guyana, and gave his accurate and complete name to INS officials. See id. After correcting the information, the INS continued to hold Ford for another year and two months. See id. The court ruled that "Ford's original misrepresentation is [in]sufficient justification for continuing to hold Ford for over ninety days." Id. The court ordered Ford's release within 60 days unless the INS instituted an adequate review process of Ford's status. See id.
Similarly, in this case Clark initially told the INS he was a Jamaican citizen. Clark subsequently corrected the information in a June 6, 2001 interview for Post-Order Custody Review, stating he is from the United Kingdom. Just as the INS failed to act in Ford, here the INS had over two years to obtain travel documents from the United Kingdom. Communication with the British consulate did commence on May 22, 2002. The government has shown no evidence of how Clark has not cooperated since that time.
Clark's initial statement that he was a Jamaican citizen certainly delayed his removal. From 1998 through 2002 the INS pursued the Jamaican government for travel documents. Consequently, the 90 day removal period would have been tolled for the period starting August 18, 1998, the start date of Clark's post-removal order detention, through, at the earliest, June 6, 2001, the day Clark claimed British citizenship. At the latest, the period was tolled until May 22, 2002, when the British government was first contacted regarding Clark's travel documents.
Using the dates set forth above, Clark's post-order removal period has lasted a maximum of one year, 11 months (June 6, 2001, to the date this court stayed Clark's removal, May, 30, 2003). And it has lasted a minimum of just over one year (May 22, 2002, to May 30, 2002). Either way, the 90 day statutory period has ended. For these reasons, the Court finds that the 90 day statutory removal period prescribed by 8 U.S.C. § 1231(a)(1)(A) has expired and that Clark's actions are insufficient to toll that period.
2. Risk of flight and danger to the community
The government does not contest Clark's petition on the grounds that, if released pending removal, he is unlikely to comply with the removal order or that he will be a danger to the community. Further, in its letter to Clark of January 28, 2003, the INS cited Clark's failure to cooperate as the only reason for his continued detention. The only evidence submitted by the government indicating that Clark may be a danger to the community or be a flight risk, which would allow for tolling of the removal period under 8 U.S.C. § 1231(a)(6), is found in the record of Clark's June 6, 2001 custody review. In that report the INS noted that Clark had used crack until his detention in 1998, that he had a history of fighting while in INS detention, but that he had not been convicted of any violent crimes. Again, the INS did not indicate any of these § 1231(a)(6) risks in its January 28, 2003 evaluation, nor did the government raise these issues in its response to Clark's petition. Thus, the removal period is not tolled under § 1231(a)(6).
B. Reasonable Foreseeability Of Removal
Because the Government has failed to show that the removal period should be tolled, under Zadvydas Clark must show that his removal is not reasonably foreseeable. Clark's claim that his removal is not reasonably foreseeable relies on the facts that he has been detained since 1998 and, after repeated requests for travel documents from both Jamaica and the United Kingdom, the BICE has still not obtained the documents. The government responds that the simple fact that Clark's removal has not yet happened establishes nothing given his concerted lack of cooperation. Further, the government seems to claim that removal is foreseeable simply because the United States has repatriation agreements with both Jamaica and the United Kingdom.
This Court concludes that the deportation of Clark to either Jamaica or the United Kingdom is sufficiently unforeseeable to meet the Zadvydas standard. Once again, there is little controlling case law on this issue. The Supreme Court in Zadvydas set six months as an initial benchmark. Beyond six months, when deciding whether removal is reasonably foreseeable, there is a sliding scale test. "[F]or detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the `reasonably foreseeable future' conversely would have to shrink." See Zadvydas, 533 U.S. at 701. Thus, the longer an alien is detained beyond six months, the less foreseeable his removal becomes.
Clark has been in INS custody since 1998. The Court will not consider, however, that entire time period in evaluating whether Clark will be removed in the reasonably foreseeable future. Clark does not earn credit for time spent in detention while not cooperating with INS officials. Therefore, the time from August 1998 through June 2001 does not weigh in the sliding scale test described in Zadvydas. So, as calculated above, Clark's actual removal period ranges from one year, 11 months, to about one year. Next, after taking account for the initial 90 day statutory period and the six month Zadvydas presumption, the Court concludes that the INS has detained Clark beyond a reasonable removal period for at least three months, or at most one year, two months. Either period is sufficient to conclude that Clark's removal is no longer reasonably foreseeable. Continued detention of Clark would be in contravention to the laws of the United States.
C. The Government's Rebuttal Evidence
To rebut Clark's claim that his removal is not reasonably foreseeable, the Government argues that Clark has not met his burden by relying on the simple fact that he has been detained since 1998 and that Clark's removal is likely because the United States has repatriation agreements with both the United Kingdom and Jamaica. Both claims are insufficient.
The government points to Fahim v. Ashcroft, 227 F. Supp.2d 1359 (N.D. Ga. 2002). There, the court denied petitioner's habeas claim concluding that "bare allegations are insufficient to demonstrate a significant unlikelihood of . . . removal in the reasonably foreseeable future." Id. at 1365-66. Clark has presented more than "bare allegations" that he has spent a long time in prison. Clark argues that travel documents are not forthcoming after corresponding with the British government and after having applied for a British passport. To issue the travel documents, the British consulate has requested proof of Clark's identification in the form of school records or a birth certificate. It seems unlikely that Clark will be able to obtain such records based on his limited recollection and given the age at which he entered the country. And although the BICE and Clark may effect his removal someday, the Court concludes that his removal is not reasonably foreseeable.
IV. CONCLUSION
For the foregoing reasons, Clark's petition for a writ of habeas corpus is granted. The BICE must release Clark under supervision, pending his final removal from the United States.
An appropriate Order follows.
ORDER
AND NOW, this 16th day of September, 2003, upon consideration of pro se Petitioner Dennis Clark's Petition for Writ of Habeas Corpus (Docket No. 1), Clark's Request for Counsel (Docket No. 1), the Government's Response to Petition for Writ of Habeas Corpus (Docket No. 4), and Clark's Rebuttal to Government's Response to Petition for Writ of Habeas Corpus (Docket No. 6), and for the reasons set forth in the accompanying Memorandum, it is HEREBY ORDERED that Clark's Petition for a Writ of Habeas Corpus is GRANTED.
IT IS FURTHER ORDERED that Clark is hereby released from BICE custody subject to supervision under regulations prescribed by the Attorney General, pending his final removal from the United States.
IT IS FINALLY ORDERED that Clark's accompanying Request for Counsel is DISMISSED AS MOOT.