Opinion
Civil Action No. 04-1508.
July 30, 2004
REPORT AND RECOMMENDATION
Presently before this court is a pro se petition for writ of habeas corpus filed by Conte Ousmane ("Ousmane") pursuant to 28 U.S.C. § 2241. Ousmane is an alien under a final order of removal. At the time he filed his petition, Ousmane was detained by United States Immigration authorities and sought release from the detention. Since the filing of his petition, he has been released from custody under an Order of Supervision. As set forth more fully herein, I recommend that Ousmane's petition be dismissed as moot.
I. FACTS AND PROCEDURAL HISTORY:
Ousmane is a native and citizen of the Republic of Congo. See Pet. at 1. On May 15, 1990, Ousmane arrived in the United States as a non-immigrant visitor. See Resp't Answer, Ex. B, at 1; Ex. I. He was authorized to remain in this country after his admission for a period of no longer than six (6) months. Id. Ousmane remained thereafter without permission from the Immigration and Naturalization Service ("INS").
The INS was incorporated into the Department of Homeland Security, on March 1, 2003. Liu v. Ashcroft, 2004 WL 906294, at *1 n. 2 (E.D. Pa. April 28, 2004). INS responsibilities are now divided among the Bureau of Immigration and Customs Enforcement ("ICE"), the Bureau of Citizenship and Immigration Services, and the Bureau of Customs and Border Protection. Id. ICE is the agency responsible for carrying out Ousmane's removal. Id.
On May 31, 1996, an Order to Show Cause was issued, charging Ousmane with deportability pursuant to § 241(a)(1)(B) of the Immigration and Nationality Act ("INA") as a non-immigrant who "remained in the United States for a time longer than permitted."See Resp't Answer, at Ex. A. During an immigration hearing, Ousmane admitted the factual allegations in the Order to Show Cause and, through counsel, conceded deportability. See Resp't Answer, at Ex. B. Ousmane, however, also petitioned for asylum and withholding of deportation. Id. On January 23, 1997, an Immigration Judge ("I.J.") granted Ousmane's application for asylum, thereby terminating Ousmane's deportation proceedings. Id.
The I.J. granted Ousmane's application for asylum after determining that Ousmane had established that he suffered past persecution in the Republic of Congo due to his political opinions and that he had a reasonable fear of persecution upon return to the country. See Resp't Answer, at Ex. B, at 2.
On August 10, 2001, following a plea of guilty, Ousmane was convicted of conspiracy to deal in firearms in violation of 18 U.S.C. § 371, in the United Stated District Court for the Southern District of New York. See Resp't Answer, at Ex. D. Ousmane was sentenced to 27 months of imprisonment. Id. As a result of his federal gun conviction, ICE moved to reopen deportation proceedings for the purpose of terminating Ousmane's asylum status. See Resp't Answer, at Ex. E.
On December 2, 2002, an I.J. determined that Ousmane was deportable and rejected Ousmane's claims for asylum, withholding of deportation, and protection under the Convention Against Torture. See Resp't Answer, at Ex. F. On January 2, 2003, Ousmane was ordered deported to the Republic of Congo. See Resp't Answer, at Ex. G.
The I.J. denied Ousmane's claims for asylum, withholding, and protection under the Convention Against Torture based, in part, on the fact that "political developments since 1990 have evolved substantially in the Republic of Congo . . . [and] it would seem unlikely that [Ousmane] would be in danger because of his family's political relationships." See Resp't Answer, at Ex. F, at 10.
Ousmane appealed the I.J.'s decision to the Board of Immigration Appeals ("BIA"). On October 6, 2003, the BIA affirmed the decision of the I.J., thereby rendering that decision final.See Resp't Answer, at Ex. H. On October 15, 2003, a travel document request was sent to the Consulate General of the Democratic Republic of Congo. See Resp't Answer, at Ex. I, at 4.
This request was sent in error to the Democratic Republic of Congo, rather than the Republic of Congo. The Republic of Congo (Congo-Brazzaville) and the Democratic Republic of Congo (Congo-Kinshasa) are separate countries. See Resp't Answer, at Ex. K L.
On November 18, 2003, a "Post Order Custody Review Worksheet" completed by the ICE district office indicated that Ousmane had no contact with a son and sister in Atlanta; an extensive criminal record; and disciplinary problems while incarcerated.See Resp't Answer, at Ex. I. Because Ousmane was considered "a threat to the community and a flight risk," reviewing officials at the ICE district office recommended that Ousmane should be detained pending the removal process. Id.; see also Resp't Answer, at Ex. E. Ousmane's case was transferred to the ICE Headquarters for review, see Resp't Answer, at Ex. I, and on January 8, 2004, a decision was issued continuing Ousmane's detention because he was expected to be "removed in the reasonably foreseeable future." See Resp't Answer, at Ex. J.
In support thereof, it was noted that "[t]he consular and embassy representatives of the Congo issue travel documents regularly and often issue said travel documents well beyond the initial period of removal." See Resp't Answer, at Ex. J.
On April 6, 2004, Ousmane filed the instant petition for a writ of habeas corpus arguing that, because his removal from the United States is not imminent, his continued indefinite detention violates his statutory and constitutional due process rights.
On July 22, 2004, ICE released Ousmane from detention pursuant to an Order of Supervision. See Resp't Supplemental Answer, at Ex. A.
II. DISCUSSION
A writ of habeas corpus can be granted to a petitioner who is "in custody under or by color of the authority of the United States . . . or . . . is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(1), (3). The Supreme Court has ruled that habeas corpus proceedings are an appropriate forum to challenge post-removal-period detention by the INS. Zadvydas v. Davis, 533 U.S. 678, 688 (2001). However, the scope of review of this court is confined to questions of constitutional and statutory law. See Bakhtriger v. Elwood, 360 F.3d 414, 424 (3d Cir. 2004).
Ousmane has satisfied the "custody" requirement found in 28 U.S.C. § 2241 because he was physically "in custody" when he filed the instant petition. Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Once federal habeas jurisdiction has attached, "it is not defeated by the release of the petitioner prior to the completion of proceedings on such application." Id. at 237-38.
Pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), aliens under a final order of deportation may be detained under the authority of 8 U.S.C. § 1231. Once removal becomes "administratively final," the Attorney General of the United States must attempt to secure an alien's removal within ninety (90) days (the "removal period"). See 8 U.S.C. § 1231(a)(1). Because "securing an alien's actual removal within 90 days is not always possible," Sierra v. Romaine, 347 F.3d 559, 570 (3d Cir. 2003), Congress has provided that, at the conclusion of the ninety (90) day period, the alien may be released under the Attorney General's supervision pursuant to 8 U.S.C. § 1231(a)(3), or detained beyond the ninety (90) day removal period if he ". . . has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal . . ." See 8 U.S.C. § 1231(a)(6). At the time of the filing of the instant petition, ICE was detaining Ousmane because he has been deemed a "threat to the community and a flight risk." See Resp't Answer, at Ex. I.
The removal period begins on the latest of: (1) the date the order of removal becomes administratively final; (2) the date of the court's final order if the removal order is judicially reviewed and if a court orders a stay of the removal; or (3) the date the alien is released from detention or confinement if the alien is detained or confined (except under an immigration process). Id. Detention of the alien during the statutory ninety (90) day period is mandatory. See 8 U.S.C. § 1231(a)(2).
In his petition, Ousmane argues that he is entitled to release from custody because his 90 day removal period has expired and he is currently subjected to an indefinite term of post-removal period detention while he awaits his removal to the Republic of Congo. He also points out that his current detention exceeds the presumptive maximum of six (6) months mandated by the United States Supreme Court in its decision in Zadvydas v. Davis, 533 U.S. 678 (2001), and implicitly found in 8 U.S.C. § 1231(a)(6).
In Zadvydas, the Supreme Court addressed the question of whether the indefinite detention of two (2) lawful permanent resident aliens, who had been ordered removed because of their criminal convictions, violated due process and constituted an impermissible application of the Attorney General's statutory authority. Zadvydas, 533 U.S. at 688-99. After recognizing the due process rights associated with aliens who have gained entry into the United States, the Court held that § 1231(a)(6), when read in light of the Constitution's demands, does not permit indefinite detention. Zadvydas, 533 U.S. at 688-699 ("once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute"). As a result, the Court recognized six (6) months as a presumptively reasonable time of post-removal-period detention for resident aliens. Id. at 692-696. After the six- (6-) month period, once an alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must furnish evidence to rebut that showing. Id. at 699-701.
Because Ousmane exclusively seeks release pending his removal to the Republic of Congo, see Pet. at 4, I find that the instant petition is moot. When a habeas petitioner has been released from custody after filing a petition, the relevant inquiry becomes whether the case still presents a case or controversy under Article III, § 2 of the United States Constitution. Spencer v. Kemna, 523 U.S. 1, 7 (1998). "This means that, throughout the litigation, the [petitioner] `must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Id. (citing Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990)). This petition no longer presents a case or controversy because Ousmane only requested his release from indefinite detention and/or his removal to the Republic of Congo. Even if unlawful, Ousmane's detention pending removal imposes no collateral consequences on him today in light of the fact that Ousmane has been released from detention pursuant to an Order of Supervision. See Camara v. Comfort, 235 F. Supp.2d 1174, 1175-1176 (Colo. 2002). Consequently, the instant petition must be dismissed as moot.Spencer, 523 U.S. at 7-8; see Riley v. I.N.S., 310 F.3d 1253, 1257 (10th Cir. 2002) (release from detention moots habeas petition challenging legality of extended detention);see also, e.g., Izquierdo v. Ashcroft, 2004 WL 1211960, at *1 (E.D. Pa. June 2, 2004) (release under an order of supervision moots consideration of habeas petition when petitioner only sought release on conditions pending removal);Nguyen v. Ashcroft, 2004WL 1588236, at *1 (E.D. Pa. July 13, 2004) (same); Sayavong v. McElroy, 2003 WL 470576, at *3 (S.D.N.Y. Jan. 9, 2003) (same); Ibrahim v. I.N.S, 2003 WL292172, at *1 (N.D. Tex. Feb. 7, 2003) (same); Camara, 235 F. Supp.2d at 1175-1176 (same).
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of July, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DISMISSED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this day of, 2004, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ for habeas corpus filed pursuant to 28 U.S.C. § 2241 is DISMISSED.
3. There is no basis for the issuance of a certificate of appealability.