Summary
holding that government did not meet its burden under Zadvydas because it provided no evidence regarding how or when it expected to obtain travel documents
Summary of this case from Khader v. HolderOpinion
No. C01-1747P
April 15, 2002
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
This matter comes before the Court on the Report and Recommendation of the Honorable John L. Weinberg, United States Magistrate Judge. (Dkt. No. 12). Petitioner, an Ethiopian citizen who has been detained for over six months pending removal, filed a Writ of Habeas Corpus seeking release under Zadvydas v. Davis, 121 S.Ct. 2491 (2001). Judge Weinberg recommended that Mr. Mohamed's writ be granted. Respondents object, claiming that Mr. Mohamed's removal is reasonably foreseeable, in that they expect to be able obtain the required agreement of the Ethiopian government to remove Mr. Mohamed at some unspecified time in the future. As issue is the deference the Court must give to the Immigration and Naturalization Services' (INS) determination.
Respondents' position echoes that of the government in Zadvydas. Here, Respondents also ask that the Court give great deference to the INS' determination that Mr. Mohamed's removal is reasonably foreseeable, the Court conducting "little or no independent review of the matter." Zadvydas, 121 S.Ct. at 2503. The Supreme Court has explicitly rejected this standard. Rather, the Supreme Court directed the district courts, in accordance with their authority under the federal habeas corpus statute, to "ask whether the detention in question exceeds a period reasonably necessary to secure removal." Id. at 2504. In doing so, district courts are to "take appropriate account" of the INS' expertise. Id. In the name of uniform administration in the federal courts, the Court adopted a presumptive six month period of reasonableness. Id. at 2505. After this period, once the petitioner provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. Id. (emphasis added).
As Judge Weinberg properly concluded in his Report and Recommendation, Petitioner has provided good reason to believe that he will not be removed in the reasonably foreseeable future. Despite Mr. Mohamed's cooperation with the INS in requesting travel documents and participating in an interview with the Ethiopian consulate, the Ethiopian embassy refuses to respond. The only evidence before the Court that the Ethiopian government at some point may respond is the INS' assertion that in some other cases the Ethiopian government has provided the necessary travel authorization for other persons. As Judge Weinberg notes, Respondents have offered no specific information regarding how or when they expect to obtain the necessary documentation or cooperation from the Ethiopian government. The only evidence submitted in Respondents' Objections is a letter informing Mr. Mohamed that meetings between the INS and the Ethiopian Embassy "appear to have resulted" in an agreement to issue travel documents. This letter was dated January 4, 2002, over three months ago. (The first request for travel documents was in August, 2001.) This is not evidence sufficient to rebut Petitioner's showing that he is unlikely to be remove in the reasonably foreseeable future. Respondents have failed to meet their burden. The Court, having reviewed the Petition for Writ of Habeas Corpus, the Report and Recommendation of the Honorable John L. Weinberg, United States Magistrate Judge, Respondents Objections, Petitioner's Response, and the remaining record, finds and Orders as follows:
(1) The Court adopts the Report and Recommendation;
(2) The Court finds that Petitioner's detention after the expiration of the six-month period is statutorily unauthorized under Zadvydas v. Davis, 533 U.S. 678 (2001);
(3) The Petition for Writ of Habeas Corpus is GRANTED;
(4) Petitioner shall be released from INS custody no later than two business days after entry of this Order, on conditions set by the INS which may include those set forth in 8 C.F.R. § 241.5 (a); and
(5) The Clerk shall send a copy of this Order to all counsel of record, and to Judge Weinberg.