Opinion
C.A. No. 04-029 S
May 10, 2004
HENERY NIMMO, Pro se, for Appellant
Michael P. Lannotte, ESQ, for Appellee
Report and Recommendation
Henry Nimmo ("Nimmo" or "petitioner"), pro se, filed with the Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his continued detention pending his removal to Liberia. Bruce Chadbourne ("Respondent"), in his capacity as the District Director, Bureau of Immigration and Customs Enforcement, has objected to the petition. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend the Nimmo's petition for a writ of habeas corpus be dismissed, without prejudice.
Background
Henry Nimmo, a native of Liberia, came to this country with his parents in October 1991 and was admitted as a lawful permanent resident. In October 1995 Nimmo was convicted in the Enfield, Connecticut Superior Court of second degree assault. As a result of this conviction, the then-Immigration and Naturalization Service, now Bureau of Immigration and Customs Enforcement, commenced removal proceedings against Nimmo. Nimmo, however, failed to appear at the removal proceedings despite receiving adequate notice. On August 7, 2002, an Immigration Judge ("LI") ordered Nimmo removed in absentia. Thereafter, a Warrant of Removal was issued and Nimmo was taken into custody.
On October 2, 2002, Nimmo filed a motion with the IJ to re-open his removal proceedings. The motion was denied on October 10, 2002. Nimmo appealed this decision to the Board of Immigration Appeals ("BIA"). The BIA summarily affirmed on June 30, 2003. On July 29, 2003, Nimmo filed a motion to reconsider with the BIA. The BIA issued a written decision on November 21, 2003, denying his motion to reconsider.
In the meantime, the Respondent requested travel documents from the Liberian government for the Petitioner. The Liberian government issued those documents on June 13, 2003. However, the travel documents expired on December 17, 2003, before the Respondent could secure the Petitioner's removal to Liberia. Accordingly, in February 2004, the Respondent requested updated travel documents from the Liberian government. Nimmo remains in custody pending his removal.
Nimmo has filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his continued detention. As a basis for relief, Nimmo cites as authority Zadvydas v. Davis, 533 U.S. 678 (2001). The Respondent has objected to the petition.
Discussion
Authority for immigration detention following a final order of removal is governed by INA § 241., 8 U.S.C. § 1231. This section provides that "[u]nder no circumstances . . . shall the Attorney General release" a criminal alien during the removal period. See 8 U.S.C. § 1231(a)(2). The "removal period" is a ninety day period, running from, infer alia, the date when the order of removal is final. See 8 U.S.C. § 1231(a)(1)(B)(i). Once the ninety day period has expired, an alien can be released by the Attorney General under conditions that he prescribes. Pursuant to 8 U.S.C. § 1231(a)(6), criminal aliens, inadmissible aliens, or other aliens considered a flight risk or danger to the community may be detained beyond the removal period for a period reasonably necessary to accomplish their removal from this country. See 8 U.S.C. § 1231(a)(6).
Here, Nimmo challenges his continued detention, citing as authority for his release Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas, the Supreme Court considered whether the Attorney General may detain aliens who have received their final order of removal indefinitely. Id. at 682. The Court concluded that the Attorney General may not. Id. at 689. Detention, at the expiration of the removal period, is limited to "a period reasonably necessary to bring about the alien's removal." Id. The Supreme Court found a six month period of detention, from the final order of removal, presumptively reasonable. Id. at 701.
Here, Nimmo received his final agency decision on November 21, 2003, when the BIA issued a written decision, denying his motion to reconsider. Therefore, his order of removal became final then. See 8 U.S.C. § 1231(a)(1)(B)(i). Nimmo, however, filed the instant petition for habeas relief on February 3, 2004, while he was still within the mandatory detention time frame of § 1231(a)(2) (providing that the Attorney General shall detain an alien during the ninety day removal period). Thus, at the time the petition was filed, Nimmo did not fall within the reach of Zadvydas, since he had not been in post removal order detention for more than six months. Accordingly, I recommend that the petition for a writ of habeas corpus be dismissed on that basis.
Alternatively, if the Court were to consider the merits of hisZadvydas claim as of the date of this report and recommendation, Nimmo's petition should still be dismissed. First, as of the date of this report and recommendation, Nimmo has been in post removal order detention for under six months. As just mentioned, six months in post removal order detention is presumptively reasonable. Zadvydas, 533 U.S. at 701.
Second, Zadvydas places the burden on the alien to show that there is "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future." Id. To this end, petitioner fails to meet his burden. Indeed, the necessary travel documents have once been issued by the Liberian government and updated documents were requested in February 2004. There is no indication that those documents will not be forth coming. Thus, Nimmo has failed to demonstrate that his removal is not in the reasonably foreseeable future.
Conclusion
Accordingly, I recommend that Nimmo's petition for a writ of habeas corpus be dismissed, without prejudice. Any objection to this report and recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b). Failure to file timely, specific objection to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).