Opinion
No. 1:18-cv-01090-JLT (HC)
08-29-2018
HUSSAIN ISHTIAQ, Petitioner, v. JEFFERSON B. SESSIONS, Respondent.
ORDER DISMISSING PETITION WITHOUT PREJUDICE
ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE
Petitioner, currently in the custody of the Bureau of Immigration and Customs Enforcement ("ICE") and proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is challenging his continued detention. Because his current detention is still within the six-month presumptively reasonable period of detention, the Court will DISMISS the petition without prejudice.
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the jurisdiction of the Magistrate Judge for all purposes, including entry of judgment. --------
FACTUAL SUMMARY
Petitioner is a native and citizen of Pakistan. (Doc. 1 at 6.) Petitioner is currently being detained at the Mesa Verde Detention Center in Bakersfield, California. (Doc. 1 at 1.) On May 2, 2018, a Warrant for Removal/Deportation was issued. (Doc. 1 at 5.) He has been detained continuously by ICE since that date.
DISCUSSION
A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2241(c)(3). A habeas corpus petition is the correct method for a prisoner to challenge the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir.1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. However, the petition must "allege facts concerning the applicant's commitment or detention," 28 U.S.C. § 2242, and the petitioner must make specific factual allegations that would entitle him to habeas corpus relief if they are true. O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.1990); United States v. Poopola, 881 F.2d 811, 812 (9th Cir.1989).
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to make a preliminary review of each petition for writ of habeas corpus. "If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief," the Court must dismiss the petition. Rule 4 of the Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990).
In the instant case, Petitioner is claiming that he is being indefinitely detained by ICE in violation of his Constitutional rights. This issue was addressed by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas, the U.S. Supreme Court found that the habeas corpus statute grants federal courts the authority to determine whether post-removal-period detention is pursuant to statutory authority. Id. at 678. In addition, the Court held that the Immigration and Nationality Act's (INA) post-removal-period detention statute does not permit indefinite detention but "implicitly limits an alien's detention to a period reasonably necessary to bring about that alien's removal from the United States." Id at 689. When faced with making such a determination, the Court must consider "the basic purpose of the statute, namely assuring the alien's presence at the moment of removal." Id. at 699. In addition, the Court must take appropriate account of the Executive Branch's "greater immigration related expertise," the Bureau's "administrative needs and concerns," and the "Nation's need to speak with one voice on immigration." Id. at 700. The Supreme Court attempted to limit those occasions when the federal court would need to make such "difficult judgments" by setting a "presumptively reasonable period of detention" of six months. Id. at 701. The burden is on the alien to show that there is no reasonable likelihood of repatriation. Id. ("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."). After six months and once an alien makes a showing 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. However, where an alien seeks release prior to the expiration of the presumptive six-month period, his claims are unripe for federal review. See Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 148- 49 (1967) ("[The ripeness doctrine's] basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.").
In this case, Petitioner has remained in the custody of ICE since May 2, 2018. Petitioner's current detention is still within the six month "presumptively reasonable period of detention." Id. Moreover, the court notes that with respect to Pakistani nationals, efforts at repatriation are generally successful. Petitioner's allegation alone is, therefore, insufficient to overcome the presumption of reasonableness of the six month period and his claims of constitutional violations are not ripe for review. Should Petitioner's detention continue past the six month presumptive period, he may re-file the instant federal action and obtain review. At that time, however, Petitioner 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.
ORDER
For the foregoing reasons, the Court ORDERS:
1) The petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE;
2) The Clerk of Court is DIRECTED to enter judgment and terminate the case; and
3) In the event a notice of appeal is filed, no certificate of appealability is required. Forde v. U.S. Parole Commission, 114 F.3d 878 (9th Cir. 1997).IT IS SO ORDERED.
Dated: August 29 , 2018
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE