NHIM v. ASHCROFT

Full title: SAM ATH NHIM, Petitioner, v. JOHN ASHCROFT, etc.; et al., Respondents

Court: United States District Court, N.D. California

Date published: Feb 26, 2004

No. C 04-089 SI (pr) (N.D. Cal. Feb. 26, 2004)

Opinion

No. C 04-089 SI (pr)

February 26, 2004

JUDGMENT

SUSAN ILLSTON, District Judge

The petition for writ of habeas corpus is dismissed without prejudice to refiling if petitioner's detention pending removal exceeds six months.

IT IS SO ORDERED AND ADJUDGED.

ORDER OF DISMISSAL

Petitioner, an alien detained by the Bureau of Immigration and Customs Enforcement ("BICE") at a facility in Oakdale, Louisiana, has filed apro se petition for a writ of habeas corpus under 28 U.S.C. § 2241. Petitioner alleges that he was taken into custody by BICE after he completed a prison sentence for armed robbery and placed in detention pending removal. He alleges that the removal order became final on September 5, 2003 but he is not removable. He allegedly is not removable because his country of origin, Cambodia, will not accept him due to a documentation problem (i.e., his identity was never established before he left Cambodia at the age of 2; consequently Cambodia does not recognize him as a Cambodian citizen and will not issue the necessary travel documents to effectuate his removal). He claims that his continued detention pending removal is illegal because it has exceeded 90 days and it is clear that he will not be deported in the foreseeable future.

The government may not indefinitely detain an alien where his native country will not accept him if he is removed. Zadvydas v. Davis, 121 S.Ct. 2497-98, 2503 (2001). Once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute. Id. However, there is a presumption that it is reasonable to detain an alien for up to six months. Id. at 2505. After six months, there is a rebuttable presumption that detention is unreasonable. Id.

Petitioner has not been in BICE custody for more than six months and therefore is within the period where his continued detention is presumed reasonable. His petition is premature. The petition for writ of habeas corpus is DISMISSED without prejudice to refiling if petitioner's detention pending removal exceeds six months.

The in forma pauperis application is DENIED as moot because petitioner paid the filing fee. (Docket #2.)

The clerk shall close the file.

IT IS SO ORDERED.