These determinations often hinge on specific evidence concerning the government's progress (or lack thereof) in obtaining travel documents for specific the petitioner. See, e.g.,Azad v. Immigration & Customs Enforcement , 2009 WL 2569132, at *2 (S.D.N.Y. Aug. 19, 2009) (finding that ICE failed to rebut a showing by petitioner by analyzing specific contacts that ICE had with the local Consulate of Bangladesh); Mohamed v. Ashcroft , 2002 WL 32620339, at *1 (W.D. Wash. Apr. 15, 2002) (granting relief where government failed to offer any "specific information regarding how or when [it] expect[ed] to obtain the necessary documentation or cooperation from the Ethiopian government"). Oftentimes, Zadvydas claims require evidentiary hearings on the likelihood of removal.
acanic v. Elwood, No. CIV.A. 02-8019, 2002 WL 31520362, at *3-5 (E.D. Pa. Nov. 8, 2002) (granting writ where there was little contact with consular officials during first nine months of the petitioner's detention and the government's "own actions [showed] that it believe[d] that it [was] unlikely the Petitioner w[ould] be removed in the near future"); Thompson v. I.N.S., No. 2:02-cv-817 at *3-4 (E.D.La. Nov. 22, 2002) (Doc. 13) (granting habeas relief when petitioner was detained one year and four months and "no proof in the record of any response from Guyana to the [travel document] request, nor evidence of any follow up since November 2001"); Zhou v. Farquharson, No. 01-11391-RWZ at *2-3 (D. Mass Oct. 19, 2001) (Doc. 6) (ordering that a writ of habeas shall issue if the petitioner was not repatriated within sixty days, where the petitioner was detained 13-months and given "the lack of assurances from the INS that the necessary paperwork from China is currently on its way"). See also Mohamed v. Ashcroft, No. C01-1747P, 2002 WL 32620339, at *1 (W.D. Wash. Apr. 15, 2002) (granting writ where the foreign embassy failed to respond and the government "offered no specific information regarding how or when they expect[ed] to obtain the necessary documentation or cooperation"); Seretse v. Ashcroft, 215 F. Supp.2d 37, 50 (D.C. Cir. 2002) (granting the petitioner's motion for preliminary injunction where he had been detained "almost four years after his transfer to INS custody"). -------- Finally, petitioner has not demonstrated that he is entitled to habeas relief on the ground that he has not been provided a "neutral decision-maker" to review his continued custody in violation of his right to procedural due process.
While the record shows that ICE personnel have made repeated attempts to contact the Kenya Consulate to obtain the travel documents necessary for Petitioner's removal, it does not show that the Consulate has made any real progress toward preparing those documents, despite Petitioner's apparent cooperation and despite statements that the documents are forthcoming. See Kacanic v. Elwood, No. CIV.A. 02-8019, 2002 WL 31520362, at *3 (E.D. Pa. Nov. 8, 2002) (finding no legitimate reason to believe that removal will occur in the reasonably foreseeable future where there was lack of any definitive answer or any indication that a definitive answer was likely soon from Yugoslavian officials) (citing Mohamed v. Ashcroft, 2002 U.S. Dist. Lexis 16179, at *3 (W.D. Wash. April 15, 2002) (finding that the lack of a definite answer from the foreign consulate indicated that no removal was likely in the reasonably foreseeable future); see also Seretse v. Ashcroft, 215 F. Supp. 2d 37, 50 (D.C. Cir. 2002) ("Respondents have not demonstrated to this Court that any travel documents are in hand, nor have they provided any evidence, or even assurances from the Liberian government, that travel documents will be issued in a matter of days or weeks or even months.") (citing Okwilagwe v. INS, No. 3-01-CV-1416-BD, 2002 WL 356758, at *2-3 (N.D. Texas March 1, 2002) (alien detained for eleven months after INS represented that it would have travel documents in a few days; court found that if INS did not have documents in hand, it failed to sustain its burden of showing that alien's removal would occur in the reasonably foreseeable future)). The Court directs the parties to file status reports with the Court by August 15, 2017. If Respondents have not obtained travel documents or made
Although Respondent has set forth ICE's attempts to contact the Kenya Consulate, there is no evidence that the Consulate has actually responded or indicated that it is taking steps to provide Petitioner's travel documents. See Kacanic v. Elwood, No. CIV.A. 02-8019, 2002 WL 31520362, at *3 (E.D. Pa. Nov. 8, 2002) (finding no legitimate reason to believe that removal will occur in the reasonably foreseeable future where there was lack of any definitive answer or any indication that a definitive answer was likely soon from Yugoslavian officials) (citing Mohamed v. Ashcroft, 2002 U.S. Dist. Lexis 16179, at *3 (W.D. Wash. April 15, 2002) (finding that the lack of a definite answer from the foreign consulate indicated that no removal was likely in the reasonably foreseeable future); see also Seretse v. Ashcroft, 215 F. Supp. 2d 37, 50 (D.C. Cir. 2002) ("Respondents have not demonstrated to this Court that any travel documents are in hand, nor have they provided any evidence, or even assurances from the Liberian government, that travel documents will be issued in a matter of days or weeks or even months.") (citing Okwilagwe v. INS, No. 3-01-CV-1416-BD, 2002 WL 356758, at *2-3 (N.D. Texas March 1, 2002) (alien detained for eleven months after INS represented that it would have travel documents in a few days; court found that if INS did not have documents in hand, it failed to sustain its burden of showing that alien's removal would occur in the reasonably foreseeable future)). If Respondent cannot rebut Petitioner's showing of the unlikelihood of removal within 30 days of the filing of this Memorandum and Order, then
Clarke also contends that he should be released because ICE has failed to "provide any documentation confirming that the Jamaican government has agreed to Mr. Clarke's repatriation." (Reply 2; see alsoยง 2241 Pet. 8.) He cites Agbada v. Ashcroft, No. CIV.A.02-30098โMAP, 2002 WL 1969660 (D.Mass. Aug. 22, 2002), and Mohamed v. Ashcroft, No C01โ1747P, 2002 WL 32620339 (W.D.Wash. Apr. 15, 2002), to support his argument that Respondent fails to demonstrate his removal will occur in the reasonably foreseeable future. (ยง 2241 Pet. 8.)
See Azad v. Interim Dist. Director, New York, 2009 WL 2569132 (S.D.N.Y., August 19, 2009) (finding that ICE failed to rebut a showing by petitioner of a good reason to believe that there was no significant likelihood of removal in the reasonably foreseeable future, where ICE's contacts with local Consulate of Bangladesh resulted only in statements that Consulate was awaiting confirmation of information alien provided in travel document request.); Mohamed v. Ashcroft, 2002 WL 32620339 (W.D.Wash., April 15, 2002) (granting petitioner habeas corpus relief where government failed to offer any "specific information regarding how or when [it] expect[ed] to obtain the necessary documentation or cooperation from the Ethiopian government."). Other than stating that the travel document request is "pending," Respondent provides no details about the status of Petitioner's travel document, such as whether DHS has received any assurances that travel documents are forthcoming, or whether the Bangladesh Consulate is even willing to issue a travel document for Petitioner. Shefqet, 2003 WL 1964290, at * 5 (citing Thompson v. INS, 2002 U.S. Dist. Lexis, 23936, at * (E.D.La., Sept. 13, 2002) (finding that government failed to meet burden that removal is reasonably foreseeable in part because there was no evidence that the government of Guyana had responded to the request for travel documents)).
; โ[T]he government cannot continue to rely on claims of โbest efforts' and promises that removal is just around the corner when they have no evidence to suggest that progress is being made.โ); Mohamed v. Ashcroft, 2002 WL 32620339, at *1 (W.D.Wash. April 15, 2002) (holding that government did not meet its burden under Zadvydas because it provided no evidence regarding how or when it expected to obtain travel documents); Second, Sutanto suggests that Petitioner's removal is expected to occur in the reasonably foreseeable future because โPetitioner is from Jordan and he was issued a passport in the past by Jordanian authorities.โ
Although some possibility of removal may exist, Petitioner's period of post-final-order detention has been sufficiently long such that a remote, non-specific possibility does not satisfy Respondents' burden. See Mohamed v. Ashcroft, 2002 U.S. Dist. Lexis 16179, at *3 (W.D. Wash. Apr. 15, 2002) (adopting magistrate judge's finding that government did not meet Zadvydas burden because it provided no information regarding how or when it expected to obtain documents or cooperation from foreign government). III. Conclusion
Considering this lack of any definitive answer, or any indication that a definitive answer is likely soon, there is no legitimate reason to believe that removal will occur in the reasonably foreseeable future. See Mohamed v. Ashcroft, 2002 U.S. Dist. Lexis 16179, at *3 (W.D.Wash. April 15, 2002) (finding that the lack of a definite answer from the foreign consulate indicated that no removal was likely in the reasonably foreseeable future); Okwilagwe v. INS, 2002 U.S. Dist. Lexis 3596, at *9 (N.D. Texas March 2, 2002) (same). The INS has been unable to provide any of the additional documents that would be helpful in effectuating removal, such as a birth certificate or passport.
For example, where the destination country's lack of response is combined with the INS' inability to explain the silence and the absence of any indication that the situation may change, continued detention is unreasonable and the alien should be released. See, e.g., Mohamed v. Ashcroft, C01-1747P (W.D.Wash. April 15, 2002). In other instances, however, a country's failure timely to respond may reflect nothing more than bureaucratic inertia, suggesting that while the issuance of travel documents may be a slow process, there is no substantive difficulty and the deportation remains foreseeable.