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granting habeas relief when Government failed to produce evidence that receiving country would enable removal and that petitioner had obstructed attempts at removal
Summary of this case from KHAN v. GONZALESOpinion
CIVIL ACTION NO. 03-2480, SECTION: "C" (6)
January 8, 2004
ORDER AND REASONS
Before this Court is petitioner Muslim K. Jabir's application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. For the reasons that follow, the petition is GRANTED.
1. Factual and Procedural Background
In 1992, at the age of twenty two, Mr. Jabir, a native and citizen of the Republic of Iraq, emigrated to the United States, making entry through San Diego, California. At that time he became a legal resident of the United States. In July 1996, Petitioner was convicted in Dekalb County, Georgia, for aggravated assault with a deadly weapon and sentenced to ten years probation and three months in a state run boot camp. (Rec. Doc. 5, Ex. A, page captioned "In the Superior Court of DeKalb County"). In 1998, Mr. Jabir asserts he married an American citizen and commenced efforts to become a naturalized citizen of the United States. (Rec. Doc. 6 at 14). On September 4, 2002, Petitioner was arrested for violating the terms of his probation and sentenced to thirty-five days in jail. On October 18, 2002, the United States Citizenship and Immigration Services (formerly the I.N.S. and hereafter "CIS") detained Mr. Jabir following the completion of his thirty-five day sentence for his probation violation. CIS officials transported him to the Harris County, Georgia jail for detention pending his deportation to Iraq. He has been in CIS custody since, having been held in Georgia, and in Louisiana at Orleans Parish Prison and, presently, Tensas Parish Prison.
Petitioner suggest.an apparent disagreement with the government's characterization as to the penalty received as a result of Petitioner's conviction. (Rec. Doc. 6 at 11.) In light of exhibits accompanying the government's brief, the Court finds that Petitioner's characterization of his sentence is correct. (Rec. Doc. 5, Ex. A).
The only "record" of this is the Petitioner's pleading. Rec. Doc. 1, #7. During his presence in the United States as a legal resident, Mr. Jabir apparently maintained consistent employment and developed community attachments. See Rec. Doc. 6, and accompanying exhibits.
During his detention, Petitioner has had two incidents of "rules violations and [resultant] verbal assault of detention staff." These infractions have been relatively minor: one involved a fight with a fellow inmate, in which the latter apparently threw the first punch; another related to the passage by Petitioner of an anonymous note under a door to the female quarters of the prison. That note invited continued correspondence. See Rec. Doc. 5 at 3-4 and Ex. E; Rec. Doc. 6 at 13.
Following a hearing before Immigration Judge William Cassidy on January 14, 2003, Petitioner was ordered deported to Iraq. Petitioner waived his right to appeal that decision, and the order became final. 8 C.F.R. § 1241.4(g). On February 27, 2003, travel documents were submitted by deportation officials on behalf of Mr. Jabir to the "Iraqi Interests Section" of the Iraq Mission to the United States in Washington, D.C., the receipt of which was denied. On March 11, 2003, the regional deportation officer in charge of Mr. Jabir's case submitted a travel document request package to Immigration and Customs Enforcement ("ICE") Headquarters Removal Unit in Washington, D.C. ("ICE Headquarters"). (Rec. Doc. 5, Ex. C). On May 9, 2003. the ICE Field Office Director issued a Decision to Continue Detention. (Rec. Doc. 5, Ex. D). During the summer of 2003 there occurred a Hurry of communication between Washington and regional offices concerning Iraqi detainees, commencing with a July 14, 2003 e-mail from ICE Headquarters that efforts continue "toward establishing removal operations to Iraq" and concluded with an August 6. 2003 communication from ICE Removal Headquarters directing the transfer of all Iraqi final order travel document request packages to ICE Headquarters. The government concedes that, since August 6, 2003, regional deportation officers have been given no guidance "as to the status of the process for issuing travel documents for" and effecting the repatriation of aliens to Iraq. (Rec. Doc. 5 at 2-3.)
Rec. Doc. 5, Ex. B. The Iraq Mission refused service of the travel documents, which were returned to CIS officials. It is noteworthy that this service was attempted within three weeks of the commencement of hostilities between the United States and Iraq, and during a time the United States and its allies had amassed a large military presence on that nation's borders.
To date, this has been the only administrative review the CIS has provided to assess the continued detention of Mr. Jabir.
During the period since the order of his deportation became final, Mr. Jabir alleges he has assisted government officials by communicating, apparently unsuccessfully, with the foreign missions of various countries to secure his deportation there as alternatives to Iraq; they include: Kuwait, Sudan. Iran, Egypt, Mauritania, Afghanistan, Great Britain, Germany, Norway, Turkey, Jordan. Australia and Venezuela.
The government and Mr. Jabir are in disagreement with the level of cooperation Petitioner has provided in this regard. However, in light of the detailed account of the circumstances surrounding his efforts (Rec. Doc. 6 at 6-7), the fact that he has provided a copy of at least one nation's denial of his request (Rec. Doc. 6, Ex. A), his pro se status, and the government's failure to detail his failure in this regard, other than merely signaling its existence, the Court assumes the accuracy of Petitioner's statements on this issue. See Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 2003) (applying a liberal standard in construing the pleadings and motions of parties proceeding pro se).
Mr. Jabir filed tins petition pursuant to 28 U.S.C. § 2241 on October 6, 2003, asking this Court to determine whether the government's continued pre-removal detention, which now exceeds fourteen months, violates the reasonable foreseeability standard imputed to 28 U.S.C. § 1231 by the Constitution as announced by the Supreme Court in its Zadvydas holding.
II. Jurisdiction
A. Subject Matter Jurisdiction
Federal Jurisdiction is proper here under 28 U.S.C. § 2241. The general habeas corpus statute provides that the federal courts have the authority to grant a writ of habeas corpus to a person held "in violation of the Constitution or laws and treaties of the United States." 28 U.S.C. § 2241(c)(3). The statute also grants federal courts jurisdiction to review the lawfulness and constitutionality of executive detention. The Supreme Court in Zadvydas concluded that "§ 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention." Zadvydas v. Davis, 533 U.S. 678, 688, 150 L.Ed.2d 653., 121 S.Ct. 2491 (2001). This Court therefore has subject matter jurisdiction to entertain Mr. Jabir's petition challenging his post-removal-period detention.
B. Personal Jurisdiction
Though the government does not contend that this Court is without personal jurisdiction to consider this petition, because of the transfer of Mr. Jabir outside of this District, for thoroughness, the Court notes its jurisdiction over him. The controlling statute confers upon federal courts the authority to grant writs of habeas corpus "within their respective jurisdictions." 28 U.S.C. § 2241. Thus personal jurisdiction is determined by the presence of the custodian within the territorial jurisdiction of the Court. Braden v. 30th Judicial District Court of Kentucky, 410 U.S. 484, 495, 35 L.Ed.2d 443, 93 S.Ct. 1123 (1973).
The United States Fifth Circuit Court of Appeals has firmly stated that the district of incarceration is the only district that has jurisdiction to entertain a § 2241 petition. Lee v. Wetzel, 244 F.3d 370, 373 (5th Cir. 2001). However, this requirement is determined and satisfied at the time the petition is filed, Id. at 370 n. 5 (citing St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250. 1253 (5th Cir. 1988). "Jurisdictional facts must be judged as of the nine the complaint is filed.")). At the time of the filing of this petition, Mr. Jabir was held within the territorial jurisdiction of this District. This Court clearly had jurisdiction over his petition and his custodian at that time.
His relocation to the Western District of Louisiana has not affected this Court's authority to address his petition. The federal courts have generally concluded that a court of proper jurisdiction does not lose jurisdiction when the petitioner is involuntarily transferred shortly after the petition is filed. Chavez-Rivas v. Olsen, 194 F. Supp.2d 368, 369-70 (D.N.J. 2002); Barton v. Ashcroft, 152 F. Supp.2d 235 (D. Conn. 2001): U.S. ex rel. Sadiku v. U.S. I.N.S., 1995 U.S. Dist. LEXIS 4650 (N.D. IL. 1995) (citing U.S. ex rel. Circella v. Sahli, 216 F.2d 33, 37 (7th Cir. 1954)). The federal courts recognize the frequency of alien transfers and are reluctant to impose a narrow view of the "day-to-day custodian" approach in determining personal jurisdiction after the alien is transferred. See Arias-Agramonte v. Commissioner of I.N.S., 2000 U.S. Dist. LEXIS 15716 (S.D.N.Y. 2000). For this reason, the district courts do not relinquish jurisdiction simply because the alien has been transferred after riling. Id.
In the instant matter, this Court clearly had jurisdiction over Mr. Jabir and his custodian at the time of filing. His subsequent involuntary removal from the Eastern District does not alter the fact that jurisdiction lay at the time of filing. Accordingly, the Court has jurisdiction to address this matter.
III. Legal Analysis
The Court is asked to determine whether Petitioner's continued detention, now exceeding fourteen months. pending his removal to the Republic of Iraq is authorized by 28 U.S.C. § 1231, or if that detention exceeds the reasonableness standard imputed to that Section by the Constitution as announced by the Supreme Court.
The length of his detention by CIS officials is now one year beyond the date his order of deportation became final.
A. Standard of Review
As a preliminary matter, the Court notes that it must liberally construe the pleadings of a pro se plaintiff. Haines v. Kerner, 404 U.S. 519, 520, 30 L.Ed.2d 652, 92 S.Ct. 594 (1972).
Turning to the level of deference this Court is required to give CIS's decision making, the Court recognizes that expertise in matters relating to immigration lies not in the courts, but in the other branches of our government. See I.N.S. v. Elias-Zacharias, 502 U.S. 478, 481 (1992) (looking to stututory language that the Agency's determinations must be upheld so long as "supported by reasonable, substantial, and probative evidence" on the entire record); but see Zadvydas v. Davis, 533 U.S. 678? 695 (2001) (stating that plenary power of Articles I and II to regulate immigration is "subject to important constitutional limitations").Elias-Zacharias, however, related to administrative decisions challenging orders of deportation of illegal aliens, not legal, permanent residents, as in the instant matter. The government is correct that the standard of review for denial of review of deportation orders and denial of asylum applications is a substantial evidence standard. See I.N.S. v. Elias-Zacharias, 502 U.S. 478, 481 (1992) (reviewing ineligibility of asylum seeker); Woodby v. I.N.S., 385 U.S. 276 (1966) (reviewing deportation order). The government is similarly correct that judicial review of the denial of discretionary relief by immigration officials is subject to an arbitrary and capricious or abuse of discretion standard. See, e.g., Carrasco-Favela v. I.N.S., 563 F.2d 1220 (5th Cir. 1977); Gottesman v. I.N.S., 33 F.3d 383 (4th Cir. 1994). However, what is challenged here is not the decision of deportation issued by CIS, which would put this case on all fours withElias-Zacharias; nor is it a discretionary determination of CIS that is challenged. Rather, this case involves the indefinite detention of the Petitioner by the government pending his removal. Therefore, this case is more closely analogous to Zadvydas, where the Court determined, on narrow grounds, that the level of deference to be attributed to the administrative decisions of CIS are different where the issue involved is not the validity of the order of deportation, the denial of entry or the continued detention of one who has remained at the nation's borders. See Zadvydas v. Davis, 533 U.S. 678, 695-97 (2001) (rejecting arbitrary' and capricious standard and highly deferential standards where executive power is subject to "important constitutional limitations"). So. while the government's determinations concerning entry and removal are allotted high regard by the judiciary (because those decisions arise out of the executive's expertise in these matters), that level of deference diminishes where the issue is a claim of detention in violation of both the statute and the limits imposed on it by the Constitution. Zadvydas, 533 U.S. at 699-700.
Respondents suggest that the Court should employ the most deferential standard in reviewing this petition. To advance its position, the government draws the Court's attention to three possible standards: that the Attorney General's decision can only be reversed on the basis that it was "wholly irrational" (Fiallo v. Bell, 430 U.S. 787, 796; Kleindienst v. Mandel, 408 U.S. 753, 770 (1972)); that the decision was an abuse of discretion (Pierce v. Underwood, 487 U.S. 552, 559-63 (1998)); or, at least that his decision was lacking substantial evidence to support it (I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)). As discussed above, while such standards may be appropriate in many immigration matters, this is not one. Here, the government seeks a highly deferential standard applied not to its determination whether an alien should be denied entry or should be removed, rather it seeks the same level of deference to its decision that the continual detention of a removable alien does not violate the Constitution.
The Government's proposed construction of the law is not entitled to the level of deference suggested in its brief. Where Congress has clearly expressed its legislative intent, the Court must give effect to that intent, regardless of CIS's interpretation. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). Even if the statute were considered ambiguous, there is not now any regulation to which the Court could defer that purports to allow Petitioners' indefinite detention pending removal to a country without a government capable of manifesting acceptance. CIS's determination is entitled to deference so long as it satisfies the constitutionally acceptable goals of the statute: that is, so long as that determination preserves the availability of the alien at the time of removal. Zadvydas, 533 U.S. 690-91. Absent some special circumstance, such as a "dangerousness rationale," the government receives limited latitude where the goal of detention "bears [no] reasonable relation to [that] purpose."Id.
Any ambiguity relating to the permissible length of detention of removable aliens the statute may once have evoked was resolved by the Supreme Court. Zadvydas, 533 U.S. at 697.
B. General Statutory Construction
The Immigration and Naturalization Act ("INA") provides that the Attorney General shall remove an alien within the "removal period," which it generally defines to be 90-days from the later of the date an order of removal becomes administratively final, the date any judicial review of an order of removal is completed, or the date of release of an alien from any non-immigration confinement; it further provides that the Attorney General shall detain the alien during that removal period. 8 U.S.C. § 1231(a)(1)(A)-(B). Further, the INA provides that an alien, if not removed during the removal period, shall, pending his removal, be subject to supervision under regulations prescribed by the Attorney General. 8 U.S.C. § 1231(a)(3). The regulation applicable here provides that an alien who is removable pursuant to 8 U.S.C. § 1227(a)(2), may be detained beyond the removal period until his removal can be effected. 8 C.F.R. § 241.4(a). However, the Fifth Amendment's protections of liberty impose implied limitations on these provisions. Zadvydas, 533 U.S. at 699.
C. Removal Under 8 U.S.C. § 1231(b)(2)
The processes by which the Attorney General is to determine the country to which an alien can be removed is governed by 8 U.S.C. § 1231(b)(2). Section 1231(b)(2)(A)(i) requires the Attorney General to remove the alien to the country designated by the alien. That provision is limited, however, by 8 U.S.C. § 1231(b)(2)(C), which specifies limited circumstances under which the Attorney General may disregard § 1231(b)(2)(A)(i).
Specifically, 8 U.S.C. § 1231(b)(2)(C) provides:
the Attorney General may disregard a designation under subparagraph
(A)(i) if —
(i) the alien fails to designate a country promptly;
(ii) the government of the country does not inform the Attorney General finally, within 30 days after the date the Attorney General first inquires, whether the government will accept the alien into the country;
(iii) the government of the country is not willing to accept the alien into the country; or
(iv) the Attorney General decides that removing the alien to the country is prejudicial to the United States.
As a result, the statute requires that the government of the country designated by the alien must be willing to accept the alien. Where that first statutory mandate for removal proves impossible, the Attorney General may move to the second step, requiring him to remove the alien to the country of which the alien is a subject, national or citizen. S U.S.C. § 1231(b)(2)(D). Like § 1231(b)(2)(C), this subsection presumes a willingness on the part of the government of the receiving country to accept the alien. Where neither of these removal provisions prove possible, the statute allows for the Attorney General to arrange deportation to "additional removal countries." 8 U.S.C. § 1231(b)(2)(E). Again, this subsection requires the removal country's government's acceptance of the alien.
8 U.S.C. § 1232(b)(2)('D) specifically states:
If an alien is not removed to a country designated under subparagraph (A)(i), the Attorney General shall remove the alien to a country of which the alien is a subject, national, or citizen unless the government of the country —
(i) does not inform the Attorney General or the alien finally, within 30 days after the date the Attorney General first inquires or within another period of time the Attorney General decides is reasonable, whether the government will accept the alien into the country; or (ii) is not willing to accept the alien into the country.
That subsection provides:
If an alien is not removed to a country under the previous subparagraphs of this paragraph, the Attorney General shall remove the alien to any of the following countries: (i) The country from which the alien was admitted to the United States. (ii) The country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States. (iii) A country in which the alien resided before the alien entered the country from which the alien entered the United States. (iv) The country in which the alien was born. (v) The country that had sovereignty over the alien's birthplace when the alien was born. (vi) The country in which the alien's birthplace is located when the alien is ordered removed. (vii) If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien into that country.
D. Regulations Governing Removal and Post-Deportation Order Detention
The Attorney General has promulgated regulations by which to assess compliance with the limitations announced in Zadvydas. See 8 C.F.R. § 241.13 (governing determination of a significant likelihood of removal within the reasonably foreseeable future); 8 C.F.R. § 241.14 (allowing for continued detention of removable aliens on account of special circumstances). Regulation 241.13 tracksZadvydas's mandate in that it requires a deportable alien to first establish a basis that removal in the "reasonably foreseeable future" is not possible. 8 C.F.R. § 241.13(d). Detention of the alien is to continue in accordance with 8 C.F.R. § 241.4 pending government determination whether removal can or cannot occur within the reasonably foreseeable future. 8 C.F.R. § 241.13(b). If the government concludes, as the deportable alien contends, that no reasonable likelihood of removal within the foreseeable future exists, then the alien is to be released on conditions specified by the Attorney General. 8 C.F.R. § 241.5, 241.13(h). However, despite the finding of an absence of foreseeable removal, under limited "special" circumstances the government may continue to detain a removable alien. 8 C.F.R. § 241.13(g), 241.14.
Though that Regulation provides for the discretionary paroling of certain aliens ( 8 C.F.R. § 241.4(d)-(e)), it allows for the continued detention of certain removable aliens beyond the 90-day removal period where an alien's release "pose[s] a danger to the community or to the safety of other persons or to property or a significant risk of flight pending such alien's removal from the United States." 8 C.F.R. § 241.4(d)(1), 241.4(e)-(f).
Regulation 241.14 authorizes the continued detention of a removable alien, despite a finding that removal will not take place within the reasonably foreseeable future, where the alien poses a special risk, which is limited to: aliens carrying contagious diseases that pose a public safety risk ( 8 C.F.R. § 241.14(b)); aliens detained who pose serious adverse foreign policy consequences ( 8 C.F.R. § 241.14(c)); aliens detained because of antiterrorism concerns ( 8 C.F.R. § 241.14(d)); and aliens determined to be especially dangerous by virtue of the severity of their crimes, or by virtue of mental illness ( 8 C.F.R. § 241.14(f)). This regulation does not allow the government to consider risk of flight as a continued detention factor.
In 1996, Mr. Jabir was sentenced to three months incarceration and probation for a term often years for assault with a deadly weapon. Six years after his conviction, Mr. Jabir was sentenced to thirty-five days in the Dekalb County Jail for violating the terms of his probation. Mr. Jabir was released to CIS officials by his custodian in Georgia on October 18, 2002. See 8 U.S.C. § 1 227(a)(2) (authorizing the Attorney General to order deportation of resident alien following certain criminal convictions). On January 14, 2003, eighty-eight days following the commencement of his detention by CIS officials, Mr. Jabir was ordered deported pursuant to 8 U.S.C. § 1229 and 1229a. Because Mr. Jabir did not challenge the order of deportation that issued, that order became final on January 14, 2003. 8 U.S.C. § 1231(a)(1)(B)(i). The regional director of CIS reviewed the continued detention of Mr. Jabir on April 10, 2003; and on May 1, 2003, or more than ninety days after the order of deportation became final, the regional director authorized the continued detention of Mr. Jabir pending CIS's continuing deportation efforts. Mr. Jabir continues to be in CIS custody; his detention now exceeds fourteen months, and approaches the anniversary of the date of finality of the deportation order.
E. Case Law
"Freedom from imprisonment — from government custody, detention or other forms of physical restraint — lies at the heart of the liberty that [the Fifth Amendment] protects." Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (citing Fouchas v. Louisiana, 504 U.S. 71, 80 (1992)). Various courts have addressed whether the continued detention of an individual like Mr. Jabir violates this liberty interest. Though the controlling statute at issue in this case does not expressly impose a temporal limitation upon the Attorney General's detention of aliens, it is clear that such a limit is implied by virtue of the constitutional demands of due process. See Zadvydas, 533 U.S. at 690 (stating, "[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem"). Faced with the issue of the constitutionality of indefinite alien detention pursuant to that section, the Supreme Court held that such detentions are `muted to a period where removal is "reasonably foreseeable." Zadvydas, 533 U.S. at 699.
In that case, Zadvydas, a decades-long resident alien, born of Lithuanian parents in a displaced persons camp in Germany in 1948, was ordered deported to Germany following his prison sentence of several years for various crimes. Zadvydas, 533 U.S. at 684. However, the governments of Germany, the Dominican Republic (his wife's native country) and Lithuania each refused his removal to their shores. Id. Zadvydas was held by the I.N.S. under a continued detention order in excess of seven years and sought release through federal habeas corpus because there was no country to which he could be deported. Id.
This seven year detention is based on the period commencing withZadvydas's detention by I.N.S. officials in 1994 through the Supreme Court's ultimate decision in 2001. His detention approximated three years at the time the district court initially ordered his release. U.S. v. Zadvydas, 986 F. Supp. 1011 (E.D. La. 1997).
The Supreme Court determined that due process allowed for an immigration detainee to be held beyond the 90-day removal period for as long as the Government could establish that there is a likelihood of deportation within a reasonably foreseeable time. Id. at 699. A habeas court is therefore required to determine whether the detention in question exceeds a period reasonably necessary to secure removal. Id In so doing, the reviewing court should measure reasonableness primarily in terms of the statute's basic purpose, that is, to insure the alien's presence at the time removal is to be effected. Id. Where removal is not reasonably foreseeable, the reviewing court should hold continued detention unreasonable and no longer authorized by statute. Id. at 699-700. If removal is reasonably foreseeable, the habeas court should consider the flight risk of the alien and the danger he poses to the community as factors potentially justifying continued confinement during that reasonable removal period. Id at 699-700.
The Court held that six months detention beyond the administrative finality of the deportation order is presumptively reasonable. Id at 701. However, when that six month period expires, the alien can show good cause to believe that there is no significant likelihood of removal in the reasonably foreseeable future. At that time, the burden shifts to the Government to rebut that showing." If the government fails to rebut this showing, and the time in which removal might occur is not reasonably foreseeable, the detention exceeds that permitted by constitutional standards and the alien must be released. Id. at 699-70.
The Supreme Court also cautioned that the six month presumption does not mean that every alien not removed must be released after six months. Zadvydas. 533 U.S. at 701. To the contrary, the Court held that the alien may be held in confinement until such time as the I.N.S. or a federal court determines that there is no significant likelihood of removal in the reasonably foreseeable future. For detention to remain reasonable, "as the period of prior post-removal confinement grows, what counts as the `reasonably foreseeable future conversely would have to shrink." Id On remand, the Fifth Circuit ordered Zadvydas released on probation because the Government failed to prove a likelihood of deportation within the reasonably foreseeable future. Zadvydas v. Davis, 285 F.3d 398 (5th Cir. 2002).
Therefore, this Court must determine whether Mr. Jabir's continued confinement complies with constitutional due process in that it is likely that the Attorney General will be successful in repatriating him to the Republic of Iraq or another designated country within the reasonably foreseeable future.
The government contends that Mr. Jabir is not eligible for parole pending his removal because (1) he has not satisfied the requisite showing that his removal will not occur within the reasonably foreseeable future and (2) because of his lack of cooperation in obtaining travel documents. It also suggests that, because of his failure to demonstrate that his removal will not occur in the reasonably foreseeable future, the continued detention provision of 8 C.F.R. § 241.14 is not applicable to this case. Rather, it suggests the standard governing any parole or continued detention of Mr. Jabir is found in 8 C.F.R. § 241.4. The Court is unpersuaded by the government's positions with respect to the likelihood of removal within the foreseeable future, Mr. Jabir's cooperation (or lack thereof) in arranging his removal, and what provisions govern his release.
Even if the Court were to apply the lower threshold showing of 8 C.F.R. § 241.4 authorizing continued detention, it is not persuaded that Mr. Jabir would not satisfy its basis for parole. The record concerning Mr. Jabir's risk to society and risk of flight appear minimal. His criminal history is relatively insignificant and he has long term ties with the community in which he lived, including, apparently, steady employment and a wife. The Court is mindful that the purpose of post-removal detention is to secure the detainee's presence at the time of removal; it is not a punitive measure. Zadvydas, 533 U.S. at 690.
As such, the Court is of the opinion that, had Mr. Jabir petitioned the government for release pursuant to 8 C.F.R. § 241.13, rather than through the courts pursuant to 28 U.S.C. § 2241, he would have satisfied the elements required by that Regulation and would resultantly be paroled. Therefore, despite the government's position, 8 C.F.R. § 241.14, and not 8 C.F.R. § 241.4, would govern any rationale for continued detention. The record offers no basis, nor does the government direct the Court to any special circumstance, that would place Petitioner in that class of special risks allowing continued detention pursuant to 8 C.F.R. § 241.14, despite the fact his removal is not reasonably foreseeable.
The government has until now been unsuccessful in negotiating the repatriation of Mr. Jabir to the Republic of Iraq. While the government takes the position that Mr. Jabir's deportation to Iraq will occur within the reasonably foreseeable future, certain facts unmentioned in the government's brief are noteworthy — namely that Iraq is under American military occupation, hostilities are ongoing and there is yet to be established a stable Iraqi-based political system. Hence, there is no Iraqi government with which to coordinate Mr. Jabir's repatriation. Also noteworthy are pronouncements by the Executive that a transfer of power from the Coalition Provisional Authority to some Iraqi governing body is planned to occur on June 30, 2004, See, e.g. Colin L. Powell Op-Ed Contribution: What We Will Do in 2004, N.Y. Times, Jan. 1, 2004, at A25. The government however makes no mention of such predictions in its briefs, nor is it clear how that mere transfer of power, itself, will make repatriation more reasonably foreseeable, in light of the aforementioned conditions there.
Though the Fifth Circuit has yet to address a closely analogous situation in this post-Zadvydas climate, the Ninth Circuit has had such an opportunity. Ali v. Ashcroft, 346 F.3d 873 (9th Cir. 2003). There, the removable immigrants at issue were natives and citizens of Somalia, a country with no government in which to negotiate their repatriation, Id. at 876. Petitioners sought an order enjoining the I.N.S. from removing them to Somalia because of the absence of a functioning government in that country. Id. at 876-77. Faced with the proposition of potentially indefinite detention of Somali detainees where there is the absence of an operational government, the court affirmed the district court's release of the immigrants on the basts that § U.S.C. § 1231(b)(2) does not authorize the Attorney General to remove individuals where no functioning government exists and, as a result, there was no likelihood that the petitioners in that case would be removed in the reasonably foreseeable future. Id. at 886.
While the Fifth Circuit, like several other circuits, has been asked to apply Zadvydas, those cases have generally addressed attempts to apply an expanded application of that holding to excludable aliens. See,e.g., Mora-Rueda v. Bureau of Immigration and Customs Enforcement, 2003 U.S. App. LEXIS 23716 (5th Cir. 2003) (Zadvydas does not apply to excludable aliens); Quintero v. Bureau of Immigration and Customs Enforcement, 71 Fed. Appx. 336 (5th Cir. 2003) (same). This case, unlike those, involves the application of the limited holding of Zadvydas to a removable alien, not to an excludable alien, so does not "present a very different question." Zadvydas, 533 U.S. at 682.
Similarly. Mr. Jabir argues here that because there is no functioning government in Iraq that can accept him, his detention, which he contends is already considerably in excess of a reasonable period under Zadvydas, has no foreseeable conclusion. His position has merit. Though the details of the political situation described in Ali, one marked by absence of a receiving national government by reason of civil war, Ali, 346 F.3d at 877, are distinguishable from the specific political situation in Iraq, the overall similarity remains: in neither country is there a national government authorized to receive the removable alien. While the shifting scales of reasonableness weigh heavily in favor of the authority of the Executive to detain a removable alien during the initial six-months of detention, those scales increasingly shift in favor of a detainee as the period of detention extends beyond six months and the likelihood of removal remains remote. See Zadvydas, 504 U.S. at 701 (stating that as detention exceeds the presumptively reasonable period of six months, the "reasonably foreseeable future" conversely shrinks).
While his detention is now doubly in excess of the presumptiveZadvydas period, the Court need not determine whether this is "considerably" in excess of that standard. It is within the general time frame other courts in this District have held excessive. See Vozniuk v. I.N.S., 2002 U.S. Dist. LEXIS 23938 (E.D. La. 2002) (Judge Lemmon) (granting habeas relief after twenty-two months of detention); Thompson v. I.N.S., 2002 U.S. Dist. LEXIS 23936 (E.D. La. 2002) (Judge Lemmon) (granting habeas relief after fourteen months from finality of order of deportation).
Moreover, while 8 U.S.C. § 1231(a)(1)(C) allows the Attorney General to extend the removal period "if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal subject to an order of removal," that provision is inapplicable where the inability to remove is not because of consistent refusals to cooperate by the alien, but by external matters over which the alien has no control as is the case here. Compare Ali, 346 F.3d at 891-92 (Zadvydas applies where detention is because of government inability to deport and not because of alien truculence) with United States ex rel. Kovalev v. Ashcroft, 71 Fed. Appx. 919, 924 (3d Cir. 2003) (Zadvydas inapplicable where circumstances surrounding continued detention are of the alien's own making). There is a lack of evidence submitted by the government in its brief as to each of the following: that political conditions in Iraq are likely to change in the foreseeable future, enabling the government to carry out its order; and that Petitioner is in any way obstructing attempts to remove him there or to an alternative country.
Furthermore, the agency's own operating instructions and regulations support Petitioners' position that his detention violates, in addition toZadvydas, the statute itself where there is an absence of a governmental body to receive him. Regulations governing detention, removal, and release assume that the government of a country must accept removal.See, e.g., 8 C.F.R. § 241.4(k)(1)(I) (CIS "shall conduct a custody review for an alien . . . where the alien's removal, while proper, cannot be accomplished during the period because no country currently will accept the alien.") (emphasis added). Though the government cites regulations expounding on the Attorney General's statutory authorization to detain removable aliens similarly situated to Petitioner (see generally 8 C.F.R. § 241.1, 241.13), it fails to acknowledge the fact that endless detention as a result of the absence of a receiving government is not allowed, even within those guidelines. See Zadvydas, 538 U.S. at 690 (indicating statutes permitting indefinite detention of aliens seriously at odds with the Constitution). The position taken is in opposition to its own regulations. CIS's own guidelines dictate that "deportation cannot be effected until travel documentation has been obtained." 8 C.F.R. § 243.1(c)(1). It follows, where there is no government to receive, travel documents cannot be obtained, and there is resultantly no statutory basis for the continued detention.
The above discussion of the law and its application to the factual basis of this case, leads the Court to conclude that Mr. Jabir's continued detention exceeds the constitutional allowance announced inZadvydas, and that this detention is continuing indefinitely.
IV. Conclusion
While the authority to detain removable aliens subject to their deportation from these shores is clearly within the executives power, the writ of habeas corpus serves its "historical core [function] . . . as a means of reviewing the legality of executive detention." I.N.S. v. St. Cyr. 533 U.S. 289, 301 (2001). Mr. Jabir's detention, while not as long as that addressed in Zadvydas, is clearly as indeterminate. As such, his petition presents the same dilemma posed in that case: whether the executive can detain one whom no one will accept. The Constitution demands that such a question be answered in the negative. Zadvydas, 533 U.S. at 690. Mr. Jabir's fourteen months of detention exceeds that point where the window of likely foreseeability for removal has closed and the prospect of indefinite detention has become increasingly more likely.
For the foregoing reasons, IT IS ORDERED that the petitioner's application for writ of habeas corpus is HEREBY GRANTED.
IT IS FURTHER ORDERED that the petitioner, Muslem K. Jabir, SHALL BE RELEASED from the custody of the United States Citizenship and Immigration Services upon conditions to be set by that Agency, pursuant to its regulations.
IT IS FURTHER ORDERED that petitioner shall be released within 30 days from the date of Judgment,
IT IS FURTHER ORDERED that judgment be entered against Defendants, John Ashcroft, Attorney General of the United States, and the Immigration and Naturalization Service, and in favor of Petitioner, Muslem K. Jabir.