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finding that government's claimed anticipation of receiving documents in the reasonably foreseeable future did not satisfy burden of rebutting petitioner's showing that removal was not significantly likely
Summary of this case from Anyimu v. Dep't of Homeland Sec.Opinion
Case No.: 4:15cv560-RH/CAS
06-27-2016
CALFUS DRUMMOND, Petitioner, v. LORETTA LYNCH, et al., Respondents
REPORT AND RECOMMENDATION
Petitioner Calfus Drummond, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, ECF No. 1, challenging his continued detention by Immigration and Customs Enforcement (ICE). Mr. Drummond, a native and citizen of Jamaica, alleges that he entered the United States on August 5, 1996. ECF No. 1 at 3. He was taken into immigration custody on July 13, 2013, and has been in custody since that time. Id. Mr. Drummond alleged he was ordered removed from the United States on February 16, 2014. Id. at 3. He alleges that he has cooperated fully with all efforts to carry out his removal, but advises that the "Jamaican Consulate has failed to [issue] any travel documents to Petitioner or ICE." Id. at 5. Mr. Drummond contends that he "is unlikely to be removed in the reasonably foreseeable future." Id. at 6. Thus, he seeks release from detention pursuant to the United States Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678 (2001).
Respondents' Answer
Respondents have filed an answer, ECF No. 9, asserting that the petition should be denied because "removal is significantly likely in the reasonably foreseeable future." Id. at 1. Respondents have shown that Mr. Drummond "entered the United States as a lawful Permanent Resident on or about March 4, 1998." Id. (citing Ex. A). On February 27, 2007, he was convicted of possession of marijuana with intent to sell and fleeing or attempting to elude a law enforcement officer and sentenced to 60 days incarceration. Id. at 2. Mr. Drummond was also convicted of uttering a forged instrument and grand theft and sentenced to 6 months incarceration. Id.; see also ECF No. 9-1 at 2. He was convicted a third time on August 24, 2011, for possession of a firearm by a convicted felon and sentenced to 3 years in prison. Id.
In September 2011, ICE determined that Mr. Drummond was removable based on his criminal convictions. He was ordered removed by an Immigration Judge on June 25, 2013, and "reserved his right to appeal the order." ECF No. 9 at 2. On July 3, 2013, Mr. Drummond was released from the Florida Department of Corrections and taken into ICE's custody. Id. He filed an appeal to the Board of Immigration Appeals who remanded his case to the Immigration Judge. Id. at 2-3.
On January 17, 2014, Mr. Drummond was once again ordered removed from the United States. ECF No. 9 at 3. Because he did not appeal the second order of removal, the order became final when issued. Id. On March 4, 2014, ICE sent a travel document request to the Embassy of Jamaica. Id. On March 10, 2014, a consulate official advised that a travel document could not be issued at that time, but Mr. Drummond's case was pending review by the Jamaican government. Id.
Mr. Drummond alleged in the petition that he was ordered removed on February 16, 2014. ECF No. 1 at 3. That difference in dates is immaterial considering it is undisputed that he has been ordered removed and was in detention for more than 6 months prior to filing the petition.
Between March 2014 and October 2015, "ICE regularly communicated with the Jamaican embassy and was informed" that the travel document request was "still pending." Id. On October 8, 2015, ICE was notified that delay "was due to the Jamaican government's concern about" Mr. Drummond's "medical needs." Id. Respondents do not indicate anything further took place until January 27, 2016, when "ICE met with Jamaican embassy officials to discuss [Mr. Drummond's] travel document and to address Jamaica's concerns." ECF No. 9 at 3. The Jamaican embassy appears to be concerned "regarding the country's ability to meet the Petitioner's medical needs." ECF No. 9-1 at 3. No specific information was presented concerning that meeting. Notwithstanding, ICE states that it "anticipates being able to provide the required assurances to the Jamaican embassy regarding" Mr. Drummond's "medical situation." ECF No. 9 at 3-4. As of January 29, 2016, ICE urges that it "expects" to receive the requisite travel documentation "in the reasonably foreseeable future" and, therefore, Mr. Drummond "will be removed." Id. at 4, 6.
Respondents filed a motion requesting that Exhibit B be filed under seal. ECF No. 10. The motion was granted. ECF No. 11. The motion indicates that the exhibit, a declaration of Ryan C. Clark, "contains sensitive health information concerning Petitioner." ECF No. 10 at 1. The exhibit is attached to the motion, ECF No. 10, and is an unredacted copy of Exhibit A (ECF No. 9-1). The nature of Mr. Drummond's health needs need not be disclosed here or further addressed as no argument has been put forth that those needs are a basis for his continued detention beyond Jamaica's concerns.
Respondents also point out that the "United States has diplomatic relations with Jamaica, and ICE has a strong track record of successfully removing aliens to Jamaica." ECF No. 9 at 6. Approximately 938 successful removals were made to Jamaica in 2014. Id. at 7. Thus, ICE contends that Petitioner has not met his burden and, because of his "extensive criminal history," he poses a danger to the community and his petition should be denied. Id. at 7-8.
On February 10, 2016, a Notice to Supplement Record was filed, ECF No. 12, clarifying that "ICE currently does not have any additional information to report concerning" the assurances requested by the Jamaican embassy regarding Mr. Drummond's medical condition or "when they will be provided." ECF No. 12 at 1. Nothing further has been filed by Respondents since that date.
Footnote 2 of the Answer indicated additional information had been requested "from ICE concerning the nature of [the] assurances and when they [would] be provided to Jamaica." ECF No. 9 at 4, n.2. It was anticipated that the information might have been provided quickly. Id.
Petitioner's Response
Mr. Drummond argues in response that his petition should be granted because he "is not significantly likely to be removed in the foreseeable future." ECF No. 13 at 1. Petitioner advised that as of February 2016, he had "been detained for 31 months." Id. He argues that although a request for travel documents was made, "the fact is that no travel documents have been issued to date." Id. Mr. Drummond submits "there is no evidence when, if ever, travel documents will be issued." Id. Mr. Drummond asserts that Zadvydas does not permit indefinite detention and he should be granted release.
Analysis
Because Petitioner is not challenging a final order of removal, but only seeking release from detention pursuant to Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), this Court has jurisdiction over this § 2241 habeas petition. In Zadvydas, the Supreme Court considered a challenge to 8 U.S.C. § 1231(a)(6) and the issue of whether indefinite detention of a removable alien was authorized.
Immigration law directs that "when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days . . . ." 8 U.S.C. § 1231(a)(1)(A). During that 90 day removal period, "aliens must be held in custody." Zadvydas, 533 U.S. at 683, 121 S. Ct. at 2495 (citing 8 U.S.C. § 1231(a)(2)). After the 90-day removal period, the statute permits the Government "to detain an alien who still remains here or release that alien under supervision." 533 U.S. at 683, 121 S. Ct. at 2495 (citing 8 U.S.C. § 1231(a)(6)). That statute provides:
An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).8 U.S.C. § 1231(a)(6) (emphasis added).
Mr. Drummond was ordered removed from the United States in January 2014. Although the removal order has not been submitted, it is apparent that Mr. Drummond was deemed removable pursuant to § 1227(a)(2) based on his criminal convictions.
The Supreme Court made clear in Zadvydas that the continued detention of legal permanent aliens beyond the mandated 90-day removal period was permissible under the Constitution, but only for as long as was "reasonably necessary to bring about that alien's removal from the United States." Id., at 689, 121 S. Ct. at 2498. "[O]nce removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." Id., at 699, 121 S.Ct. at 2503. For the sake of uniformity, the Zadvydas Court held that "the presumptive period during which the detention of an alien is reasonably necessary to effectuate his removal is six months; after that, the alien is eligible for conditional release if he can demonstrate that there is 'no significant likelihood of removal in the reasonably foreseeable future.' " Clark v. Martinez, 543 U.S. 371, 125 S.Ct. 716, 722, 160 L.Ed.2d 734 (2005) (quoting Zadvydas, 533 U.S. at 701, 121 S.Ct. at 2505). Accordingly, under Clark and Zadvydas, when an alien shows that he has been held more than six months beyond the removal period and his removal is not reasonably foreseeable, a § 2241 petition should be granted. Clark, 543 U.S. at 386-387, 125 S.Ct. at 727; Benitez v. Wallis, 402 F.3d 1133, 1135 (11th Cir. 2005) (relying on Clark to hold that "an inadmissible alien can no longer be detained beyond the statutory 90-day removal period of § 1231(a)(1), where there was no significant likelihood of removal in the reasonable foreseeable future.").
In Clark, the Court extended its interpretation of 8 U.S.C. § 1231(a)(6) to inadmissible aliens, holding that the period of time reasonably necessary to effect removal should not be any longer for an inadmissible alien than for an admissible alien. Clark, 543 U.S. at 386, 125 S.Ct. at 727. The relevant statute provides: "An alien ordered removed who is inadmissible under section 1182 of this title, removable [for violations of nonimmigrant status or entry conditions, violations of criminal laws, or threatening national security] or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3)." 8 U.S.C. § 1231(a)(6).
An alien must be detained during the "removal period." 8 U.S.C. § 1231(a)(2).
Zadvydas established a burden-shifting analysis and, after the presumptive six month removal period has expired, an alien must provide "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future." Zadvydas, 533 U.S. at 701, 121 S.Ct. at 2505. Thereafter, "the Government must respond with evidence sufficient to rebut that showing." Id. The Court noted:
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.Id., at 701, 121 S.Ct. at 2505.
In this case, Mr. Drummond has met his initial burden under Zadvydas because he alleged that he had been held in detention for more than six months on a final removal order and had "worked diligently with ICE and his Consulate to capture travel documents in order to proceed with deportation." ECF No. 1 at 5. Mr. Drummond said he had "cooperated fully with all efforts by ICE" to effectuate his removal, but despite those efforts, he contends ICE is unlikely to remove him "in the reasonably foreseeable future." Id., at 6. Those allegations are sufficient to meet Petitioner's burden.
The burden shifted to Respondents to rebut that showing and demonstrate there is a significant likelihood of removal in the reasonably foreseeable future. Respondents have shown that removals have been successful to Jamaica over the past two years. That does not demonstrate, however, that this Petitioner may be removed. That is especially true in this case because the request for travel documents was made in March 2014, over two years ago. In October of 2015, the Jamaican embassy raised concerns about Mr. Drummond's medical needs. Those needs have not been resolved and there is no indication as to when resolution might come. It may be true that the travel document request is still pending, but it has now been pending for over two years. As the post-removal confinement period grows for Mr. Drummond, the "reasonably foreseeable future" period must diminish. His continued detention cannot hang on a "wing and a prayer" but must be based on "evidence sufficient to rebut" Mr. Drummond's showing that is removal is not significantly likely. That evidence has not been presented.
The Song Spinners, "Coming in on a Wing and a Prayer" (Decca Records 1943).
There is no evidence that Mr. Drummond's removal is either "significantly likely" or that it could occur in the "reasonably foreseeable future." Indeed, on this record, it appears that ICE is detaining him indefinitely as Mr. Drummond has been held, as of this date, for over two years and five months past the date his order of removal became final. This period of detention has far exceeded the presumptively reasonable removal period without any indication that the travel document request is likely to be granted.
When an alien shows that he has been held beyond the presumptive removal period and his removal is not reasonably foreseeable, his § 2241 habeas corpus petition should be granted. Clark, 543 U.S. at 386-387, 125 S.Ct. at 727; Benitez, 402 F.3d at 1135. An alien who cannot be removed cannot "be condemned to an indefinite term of imprisonment within the United States." Zadvydas, 533 U.S. at 695, 121 S. Ct. at 2502.
The statute governing release provides that if an alien "is not removed within the removal period, the alien, pending removal, shall be subject to supervision under regulations prescribed by the Attorney General." 8 U.S.C. § 1231(a)(3). The regulations require the alien to: "(A) to appear before an immigration officer periodically for identification; (B) to submit, if necessary, to a medical and psychiatric examination at the expense of the United States Government; (C) to give information under oath about the alien's nationality, circumstances, habits, associations, and activities, and other information the Attorney General considers appropriate; and (D) to obey reasonable written restrictions on the alien's conduct or activities that the Attorney General prescribes for the alien." 8 U.S.C. § 1231(a)(3). Respondents should be ordered to release Mr. Drummond from custody under such terms and conditions deemed necessary pursuant to § 1231(a)(3).
Aliens removable because of the commission of specified crimes must be "subject to the terms of supervision." 8 U.S.C. § 1231(a)(6). --------
Accordingly, it is RECOMMENDED that the petition for writ of habeas corpus, ECF No. 1, filed by Calfus Drummond under 28 U.S.C. § 2241, be GRANTED, and the Court ORDER that Petitioner be immediately released upon conditions of supervision pursuant to 8 U.S.C. § 1231(a)(3).
IN CHAMBERS at Tallahassee, Florida, on June 27, 2016.
S/ Charles A. Stampelos
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
A party may file specific, written objections to the proposed findings and recommendations within 14 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 14 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.