Opinion
Civ. No. 02-1387(MJD/JGL)
April 8, 2003
ORDER
The above-entitled matter comes before the Court upon the Report and Recommendation of Chief United States Magistrate Judge Jonathan Lebedoff dated February 5, 2003. Both parties have filed objections to the Report and Recommendation.
Pursuant to statute, the Court has conducted a de novo review of the record. 28 U.S.C. § 636(b)(1); Local Rule 72.1(c). Upon review, the Court has determined that it will not adopt the Report and Recommendation dated February 5, 2003 in its entirety. Specifically, the Court will not adopt Section II (D)(3)(a) of the Report and Recommendation concerning the continued detention of Gama Omar and Abdi Mohamed.
The question presented in this Section is whether the Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678 (2001), which imposed a presumptive limit to the duration of post-removal period detention to six months, applies to excludable/inadmissible aliens. Initially, the Court notes that in Section II (D)(3)(a), the Magistrate deemed both Gama Omar and Abdi Mohamed as inadmissible aliens. Petitioners do not dispute that Abdi Mohamed is properly deemed an inadmissible alien. Petitioners argue, however, that Gama Omar was admitted to the United States and was later arrested and placed in removal proceedings. As an admitted alien subject to deportability, the Zadvydas decision clearly applies to his case. In support, Petitioners point out that the government did not allege in its briefing that Gama Omar was inadmissible.
Petitioners argue that Gama Omar was legally admitted to the United States and later found deportable. This argument is supported by the charging documents issued by the INS, in which the INS checked the box that Gama Omar "was admitted to the United States, but are deportable . . ." Respondent's Exs. 18 and 23. Based on this record, the Court finds that Gama Omar is properly deemed an admitted alien subject to deportability.
1. Scope of Zadvydas
At issue in Zadvydas was a constitutional challenge to the post-removal detention provisions contained in 8 U.S.C. § 1231(a)(6) with respect to two petitioners that were removable — that is aliens who were admitted to the United States but were subsequently ordered removed. Id. Since Zadvydas was issued, however, there is a split in the circuits as to whether the presumptive six month limit on post removal detention applies to excludable/inadmissible aliens as well. See eg, Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991 (7th Cir. 2001) cert. denied 123 S.Ct. 185 (2002) (holding that continued detention of excludable alien does not violate due process); but see, Xi v. INS, 298 F.3d 832, 834 (9th Cir. 2002) (applying presumptive six month limit on post removal detention as to § 1231(a)(6) as a whole).
In Section II(D)(3)(a) of the Report and Recommendation, the Magistrate recognized this split, but determined that those cases that applied the Zadvydas decision to excludable/inadmissible aliens represented the minority view. Since the Report and Recommendation issued, however, the Sixth Circuit issued its en banc decision in Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir. 2003). In that case, the government had also argued that Zadvydas does not apply to the post removal detention of inadmissible aliens. The Sixth Circuit, however, rejected this argument. While recognizing that there is discussion in the opinion concerning the constitutional concerns of aliens removable on grounds of deportability, the court held:
we find it difficult to believe that the Supreme Court in Zadvydas could interpret § 1231(a)(6) as containing a reasonableness limitation for aliens who are removable on grounds of deportability but not for aliens who are removable on grounds of inadmissibility. Section 1231(a)(6) itself does not draw any distinction between the categories of removable aliens; nor would there be any statutory reason to interpret "detained beyond the removal period" differently for aliens who are removable on grounds of inadmissibility and aliens who are removable on grounds of deportability.
Id. at 404-405. The court further noted that "the Court's ultimate holding addresses the statute as a whole: `we construe the statute to contain an implicit "reasonable time" limitation, the application of which is subject to federal court review.'" Id. at 406 (quoting Zadvydas, 533 U.S. at 688). See also, Xi v. INS, 298 F.3d at 836; Borrero v. Aljets, 178 F. Supp.2d 1034, 1041 (D.Minn. 2001) ("we can find no sound reason to interpret and apply the statute one way for one category of alien, but a different way for others.")
The court in Rosales-Garcia also found that constitutional concerns independently compelled the court to construe a presumptive limit on post removal detention for excludable aliens. Id. at 408. The court first held that all aliens are entitled to protection under the Due Process Clauses of the Fifth and Fourteenth Amendments, while recognizing that excludable aliens are entitled to less protections. Id. at 409. The court then determined that indefinite detention of excludable aliens raises the same constitutional concerns as admitted aliens subject to deportability. "An excludable alien who cannot be removed to his country of origin presents no greater risk of flight than the aliens who could be removed to their countries of origin in Zadvydas; nor does an excludable alien's status relate any more to his dangerousness than the removable status of the aliens in Zadvydas related to their dangerousness." Id. at 411. Finally, the court determined that the Supreme Court's opinion in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) did not control the outcome of this issue, distinguishing it on its facts and finding that the Salerno line of cases decided subsequent to Mezei, which held that "civil detention is constitutionally permissible only `in certain special and narrowing circumstances where a special justification . . . outweighs the individual's constitutionally protected interest in avoiding physical restraint'", were in fact controlling. Id. (citing Zadvydas, 533 U.S. at 690).
United States v. Salerno, 481 U.S. 739 (1987)
This Court finds the analysis in Rosales-Garcia to be highly persuasive. Accordingly, this Court will follow the decisions of the Ninth and Sixth Circuits and hold that the six month presumptive limit on post-removal detention shall be applied to each class of alien described in § 1231(a)(6).
Before the Magistrate, the government had also argued that § 1231 allows it to extend Petitioner's 90 day removal period because by filing the instant petitions, they acted to prevent their removals. A similar argument was rejected in Farah v. INS, 2003 WL 221809 (D.Minn. 2003). "[I]t was not the Petitioner's habeas petition per se that triggered the INS's inability to remove Petitioner, but rather what the Court found as the proper interpretation of 8 U.S.C. § 1231(b) that prohibited Petitioner's removal." This Court also finds that the filing of the Petitions in this case did not prohibit removal.
Finally, the government had argued that there my be an opportunity to remove Abdi Mohamed to the Netherlands. Under Zadvydas, the Court held that the burden is on the alien to provide good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, and the goverment may then respond with evidence to rebut that showing. Id. at 701. Petitioners point out that on June 17, 2002, the government requested travel documentation for Abdi Mohamed from the Netherlands, but the Netherlands has not responded to this request. The government argues that Abdi Mohamed's refugee status in the Netherlands must be explored, but provides no evidence such exploration has begun or that deportation to the Netherlands will occur in the reasonably foreseeable future. Petitioners have thus met their burden in showing that Abdi Mohamed will not be deported in the reasonably foreseeable future.
With respect to both Gama Omar and Abdi Mohamed, the Court finds that the presumptive six month period has expired. Thus, Gama Omar and Abdi Mohamed shall be placed on conditional release.
The Court adopts the remaining Sections of the Report and Recommendation in their entirety.
IT IS HEREBY ORDERED:
1. Petitioner's Amended Consolidated Petition for Writ of Habeas Corpus [Docket No. 1] is GRANTED IN PART and DENIED IN PART as set forth in the Report and Recommendation and this ORDER;
2. No Petitioner shall be removed to Somalia, a country without a working government;
3. Petitioners Abdulkadir Sharif Mohamed, Ali Gama Omar and Mohamed Abdi Mohamed shall be released from detention and placed on conditional release, which can be revoked for violating conditions imposed by the INS;
4. Petitioner Mahad Mohamed Omar shall remain in INS custody until May 17, 2003 at which time he may present evidence that there is no significant likelihood of his removal in the reasonably foreseeable future.