Opinion
4:09-cv-1535.
November 23, 2009
MEMORANDUM
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation ("R R") of Magistrate Judge Thomas M. Blewitt (Doc. 12), filed on October 29, 2009, which recommends that the petition of Abdul Kanu ("Petitioner" or "Kanu"), for writ of habeas corpus pursuant to 28 U.S.C. § 2241 be dismissed. On November 17, 2009, Petitioner filed objections to the R R. For the reasons set forth below, the Court shall overrule the Petitioner's objections and adopt the R R.
I. STANDARD OF REVIEW
When objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
II. PROCEDURAL BACKGROUND
III. FACTUAL BACKGROUND[fn1]
pro se28 U.S.C. § 2241
Thereafter, on November 10, 2008, BICE issued Petitioner a Notice to Appear and charged him with being subject to removal from the United States under § 237(a)(2)(B)(I) of the INA. Also on that date, the Department of Homeland Security ("DHS") issued a Notice of Custody Determination and advised Petitioner that while he waited for a final decision from an Immigration Judge with respect to his removal from the United States, he would remain in the custody of DHS. DHS issued Petitioner a Warrant of Arrest of Alien directing that Petitioner be taken into custody for purposes of his removal proceedings. On January 21, 2009, DHS issued Petitioner a notice of Additional Charges of Inadmissibility/Deportability and advised him that he was subject to being removed from the United States due to his drug trafficking convictions, pursuant to § 237(a)(2)(A)(iii) of the INA.
On February 12, 2009, Petitioner was found removable from the United States by an Immigration Judge, and he waived his right to appeal the removal order. On August 5, 2009, BICE issued a Decision to Continue Petitioner's Detention. Thereafter, on September 8, 2009, Petitioner's case was to the Headquarters Case Management Unit ("HQCMU") for a final custody determination during the pendency of his removal. To date, the HQCMU has not made a final determination in Petitioner's case, however the record shows that the HQCMU is actively contacting the Sierra Leone Embassy to obtain a travel document for Petitioner's removal from the United States.
Petitioner does not dispute that his removal order is final.
IV. DISCUSSION
Petitioner challenges his continued confinement at York County Prison while he is awaiting execution of his final removal order. In the first claim, Petitioner claims that his continued indefinite detention by BICE is unconstitutional based on Zadvydas v. Davis, 533 U.S. 678 (2001). Specifically, Petitioner claims that his continued detention violates 8 U.S.C. § 1231(a)(6) and Zadvydas since BICE has not been able to show within the six-month presumptively reasonable removal period that there is a significant likelihood of his removal to Sierra Leone. In addition to his Zadvydas claim, Petitioner states that his continued detention by BICE is a violation of his constitutional rights under the Fifth Amendment Due Process Clause. In particular, Petitioner claims that his continued detention violates his right to substantive due process by depriving him of his liberty. Finally, Petitioner asserts a Fifth Amendment procedural due process claim, stating that he should be given a "meaningful opportunity to demonstrate that he should not be detained" and that the "custody review procedure [is] constitutionally insufficient both as written and as applied." Petitioner requests the Court to direct Respondents to immediately release him from BICE custody.
With respect to Petitioners' Zadvydas claim, the Magistrate Judge concluded that the Respondents made a sufficient showing that BICE is currently working with the Embassy of Sierra Leone via HQCMU in order to procure a travel document for Petitioner. The Magistrate Judge also concluded that Petitioner has not offered any evidence that his removal is unlikely to occur in the reasonably foreseeable future. Furthermore, as the Magistrate Judge notes, now that Petitioner's order of removal is final, he can submit a request for release with BICE under 8 C.F.R. § 241.13, et seq.
Furthermore, as the Magistrate Judge notes, now that Petitioner's removal order is final, he can submit a request for release with BICE under 8 C.F.R. § 241.13, et seq.
Nothing in our evaluation of Plaintiff's objections causes this Court to depart from the Magistrate Judge's reasoning and conclusion. Respondents have established that BICE is actively trying to work with Sierra Leone to facilitate Petitioner's removal. Further, Petitioner can still avail himself of administrative review with BICE pursuant to 8 C.F.R. § 241.13, et seq. Based upon the record before us, we simply do not find that there is "no significant likelihood of removal," and shall deny Petitioner's Zadvydas claim.
With regards to Petitioner's due process claims, the Magistrate Judge concluded that no due process violations occurred with regards to Petitioner's removal. In particular, the Magistrate Judge noted that Petitioner presented no evidence that BICE's Decision to Continue the Detention of Petitioner was arbitrary and capricious, nor did Petitioner make any showing to support his allegation that BICE is biased against aliens. Once again, based on our review of Petitioner's objections, we find no reason to depart from the Magistrate Judge's findings with regards to Petitioner's due process claim.
In conclusion, our review of this matter confirms the sound reasoning that led the Magistrate Judge to the conclusions in the R R, and thus we will adopt the R R in its entirety and overrule the Petitioner's objections. An appropriate Order shall issue.