Opinion
CASE NO. 4:11-CV-56 (CDL)
09-19-2012
DENTON S. BRAITHWAITE, a/k/a David Hutchinson, Petitioner, v. Attorney General ERIC HOLDER, JANET NAPOLITANO, et al., Respondents.
ORDER ON REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
After a de novo review of the record in this case, the Report and Recommendation filed by the United States Magistrate Judge on August 27, 2012 is hereby approved, adopted, and made the Order of the Court.
The objections of the Petitioner have been considered and are found to be without merit.
Although it is clear that this Court does not have jurisdiction to review the decision of the Immigration Judge that Petitioner is subject to removal, Petitioner's claim that the delay in his removal violates his due process rights raises an issue that the Court finds warrants appellate review. To the extent that a certificate of appealability is required for Petitioner to appeal the Court's order, the Court grants a certificate of appealability on the following issue: whether a detainee, who claims he is an American citizen but who has not appealed the Immigration Judge's determination that he is not a citizen and is deportable, must be released from custody under Zadvydas v. Davis, 533 U.S. 678 (2001), when his removal is being delayed because he refuses to sign documentation admitting that he is a citizen of a foreign country, which he continues to deny, but the signing of which would facilitate his removal.
THIS SO ORDERED, this 19th day of September, 2012.
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CLAY D. LAND
UNITED STATES DISTRICT JUDGE