Opinion
Case No. 4:08cv346-RH/WCS.
March 3, 2009
REPORT AND RECOMMENDATION
Petitioner, proceeding pro se, filed a petition seeking a writ of habeas corpus under § 2241 on July 31, 2008. Doc. 1. Respondents filed their Answer to the petition on October 8, 2008. Doc. 15.
There have been several mail returns in this case, docs. 13 and 16. After Respondents clarified Petitioner's custody status and location, doc. 17, a court order was entered directing clarification as to whether the case was moot. Doc. 19. Petitioner field an affidavit, doc. 20, and Respondents indicated Petitioner was still in the custody of ICE, and currently detained in Louisiana. Doc. 21. Another order provided Petitioner with yet another copy of the Answer (doc. 15) to ensure Petitioner could respond to the arguments raised by the Government. Doc. 22. Petitioner was given another extension of time to rile a response, and the February 18, 2009, deadline has now expired without Petitioner filing a response to the Answer. As sufficient opportunities have been provided, it is time to rule on the merits of this § 2241 petition.
Allegations of the § 2241 petition, doc. 1
The Answer, doc. 15
pro se Id. Id. Id. Zadvydas533 U.S. 768121 S.Ct. 2491150 L.Ed.2d 653Id. Id.
Respondents argue, however, that Petitioner has "failed to meet the second burden-shifting prerequisite" because he has made only conclusory allegations that neither the Bahamas nor Haiti would issue travel documents. Id., at 5. Respondents suggest that steps are being taken to procure the necessary travel documents. Id.
Petitioner has dual nationality in both the Bahamas and Haiti. Id., at 5. Efforts were made to obtain a travel document from the Bahamas where Petitioner was born. Id. The request was denied because Petitioner "is not in fact a Bahamaian citizen." Id.; see also doc. 15, attachment (Declaration of Deportation Officer Hector Gonzalez) (doc. 15-2, p. 2). Respondents contend Petitioner "is a national of Bahamas and citizen of Haiti." Id. While acknowledging that the Bahamian Consulate denied the request for a travel document, ICE has also requested a travel document from Haiti. Id., at 5; see also Declaration (doc. 14-2, pp. 3-4).
All references to exhibits are to the paper copy and page number first, followed by a reference (in parenthesis) to the corresponding document and page in the electronic docket. Both citations are referenced as a pro se litigant will not have access to the court's electronic docket.
Respondents assert Petitioner can be removed to Haiti as the Department of Homeland Security maintains diplomatic relations with that country, but acknowledge that removal has been delayed because ICE has temporarily stopped all removal flights to Haiti for humanitarian purposes "due to the adverse affects of a consecutive tropical storm and a hurricane had on Haiti." Id., at 5-6. Thus, Respondents claim that when the suspension is lifted, Petitioner will be set for removal to Haiti. Id., at 6.
Indeed, Respondents note that Petitioner had previously been scheduled to be removed and was set to depart the United States on August 27, 2008. Doc. 15, p. 6. However, the flight had to be cancelled due to the effects of the tropical storm and a hurricane in Haiti. Id.
The Declaration attached to the Answer states that Petitioner was taken into ICE custody on October 15, 2007, rather than in November as alleged in the petition. Doc. 15, Declaration, p. 3 (doc. 15-2, p. 3). Petitioner was ordered removed on January 3, 2008, and on January 14, 2008, the first formal request was submitted to the Bahamian Consulate General in Miami, Florida. Doc. 15, Declaration, p. 3. (doc. 15-2, p. 3). Additional inquires were made concerning the request on February 11, 2008, February 25, 2008, March 6, 2008, March 21, 2008, and April 1, 2008. Id. The "travel document was listed as `pending.'" Id.
While the requests to the Bahamas were still pending, ICE requested an emergency travel document from Haiti as well on February 4, 2008. Doc. 15, Declaration, p. 4 (doc. 15-2, p. 4). On April 25, 2008, a second request was submitted to Haiti. Id. Thereafter, on May 29, 2008, the Bahamian Consulate issued a formal letter of denial. Doc. Id. Two months later, on July 30, 2008, Petitioner was served a "Notice to Alien of removal to Other than Designated country" and a third request for assistance in removing Petitioner to Haiti was submitted. Doc. 15, Declaration, pp. 4-5 (doc. 15-2, pp. 4-5).
There is no suggestion that a travel document was ever received for Petitioner. Nevertheless, on August 25, 2008, Petitioner was transferred to New Orleans for removal to Haiti, and he was scheduled to "depart the United States via a JPATS flight on August 27, 2008." Id., at 5. The Declaration concludes with this information:
Due to consecutive tropical storms/hurricanes in the Gulf Coast and Caribbean, all the Haitian removals were suspended. At this time ICE is waiting for the Haitian government to resume flights to Haiti.Id.
Analysis
This Court has jurisdiction over this § 2241 habeas petition as Petitioner is not challenging a final order of removal, but only seeking release from what he asserts is an unlawful and indefinite period of detention pursuant to Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). In Zadvydas, the United States Supreme Court considered a challenge to 8 U.S.C. § 1231(a)(6) and was asked to decide whether the statute authorized indefinite detention of a removable alien. The Court held 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. Furthermore, inClark v. Martinez, supra, the Court extended its interpretation of 8 U.S.C. § 1231(a)(6) to inadmissible aliens. 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.
Section 1231(a)(1)(A) provides that the government has a 90-day "removal period" to remove an alien ordered removed from the United States. 8 U.S.C. § 1231(a)(1)(A).
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), quoted in Benitez v. Wallis, 402 F.3d 1133, 1134 (11th Cir. 2005).
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."). 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:
An alien must be detained during the "removal period." 8 U.S.C. § 1231(a)(2).
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, Petitioner has met his burden under Zadvydas because he alleged that his removal order was final for more than six months before he filed this petition, that he was being held in indefinite detention, and that it is unlikely that Petitioner can be removed to the Bahamas. It is undisputed that Petitioner has met the first prerequisite, detention more than six months. Respondents dispute only that there is no significant likelihood of removal in the reasonably foreseeable future. Doc. 10, p. 5. Respondents suggest that because Petitioner has a country to which he can be removed, and because others have been repatriated to Haiti in the past, Petitioner has not met the second prong under Zadvydas. That is incorrect, however.
Petitioner has met the prima facie showing as required for relief. Petitioner demonstrated in the petition that his requests for issuance of a travel document went without response. Doc. 1, p. 6. Based on his own unsuccessful efforts and the legnth of his detention, Petitioner asserted it was unlikely that ICE could remove him in the reasonably foreseeable future.
Therefore, Petitioner having met his burden, it shifts to Respondents to provide evidence sufficient to rebut that showing. Respondents have not done so.
While Respondents contend Petitioner could be removed to Haiti, it has not been shown that it is significantly likely that Petitioner will be removed in the reasonably foreseeable future. Indeed, Respondents have shown that flights to Haiti have been suspended. There is no indication on this record as to when the flights might be resumed. All parties in this case are "waiting for the Haitian government to resume flights to Haiti" without any demonstration of when that might occur. Perhaps flights have again begun, but the affidavit of Hector M. Gonzalez is not dated, Respondents filed their response on October 8, 2008, and Respondents have not provided any further information since then.
At this point, Petitioner has been in detention for over a year, past the date the order of removal became final. Respondents have not come forward with any evidence to rebut Petitioner's showing that there is no significant likelihood of Petitioner's removal in the reasonably foreseeable future. Thus, Petitioner is entitled to release from detention. See Zadvydas, 533 U.S. at 690 and 699-700, 121 S.Ct. at 2499 and 2504 (concluding that "[w]here removal is not foreseeable, then continued detention is unreasonable, is not authorized by statute, and is not constitutionally permissible.").
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). Such regulations are to 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 release Petitioner from custody under such terms and conditions deemed necessary pursuant to § 1231(a)(3).
Inadmissible or criminal aliens must be subject to terms of supervision. 8 U.S.C. § 1231(a)(6). Petitioner has criminal convictions. Doc. 15-2, p. 2.
Accordingly, it is RECOMMENDED that the petition for a writ of habeas corpus, doc. 1, filed by Max P. Eugene, Alien # A77-011-203, pursuant to 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.
NOTICE TO THE PARTIES
A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.