Opinion
C.A. No. 03-420 T
March 2, 2004
Report and Recommendation
Oleg Podoprigora ("Podoprigora" 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 the Ukraine. Having had a final order of removal issued on January 2, 2003, Podoprigora asserts that, pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001), his release from custody is warranted. The United States ("government") has moved to dismiss the petition Podoprigora has objected. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. A hearing was held on February 26, 2004 in this matter. For the reasons that follow, I recommend that the motion to dismiss be granted. The instant petition for a writ of habeas corpus should be dismissed, without prejudice.
Petitioner also asserts a claim for inadequate medical care and seeks monetary damages. On hearing the government's motion, petitioner indicated that he solely seeks to be released from immigration detention. In any event, such claims are not cognizable in a 28 U.S.C. § 2241 petition.
Background
Oleg Podoprigora left his native Ukraine and journeyed to this country where he was admitted as a refugee on April 6, 1993. On May 17, 1995, petitioner's status was adjusted to an alien lawfully admitted for permanent residence, as of the date of the initial admission, April 6, 1993.Soon after his admission to this country, petitioner began yet another journey, this time through our criminal justice system. Podoprigora has been convicted of numerous crimes, including: threatening to kill, assault and battery with a dangerous weapon, assault and battery, violation of the Massachusetts' abuse protection act (on three occasions), and malicious destruction of property. Petitioner served time incarcerated for these offenses. Also noteworthy, four restraining orders have been lodged against the petitioner by his now ex-wife, Maryana Furman Podoprigora. Additionally, another woman, Valery Kostenko filed for and received a restraining order against the petitioner. Podoprigora has physically and verbally abused both of these women.
The Immigration and Naturalization Service ("INS") learned of petitioner's journey through our criminal justice system and his habit of abusing women. Accordingly, the INS initiated removal proceedings against him. The INS ultimately charged that Podoprigora was removable pursuant to 8 U.S.C. § 1101(a)(43)(F) for having been convicted of a crime of violence for which a term of imprisonment was at least one year.
The Immigration and Naturalization Service is now a part of the Department of Homeland Security. For ease of reference, this writer will continue to refer to this agency as the INS.
At a hearing before an immigration judge ("IJ") on February 25, 1999, Podoprigora admitted the allegations and conceded deportability. Accordingly, the IJ found that petitioner was removable. Podoprigora then requested asylum, withholding of removal, and relief under Article 3 of the Convention Against Torture. Following further hearings, the IJ denied Podoprigora the relief he requested and ordered him removed to the Ukraine.
Petitioner and the INS both waived their right to appeal the decisions of the IJ. Nonetheless, petitioner filed an untimely appeal with the Board of Immigration Appeals ("BIA"). Following a couple of unsuccessful attempts to have the BIA hear his appeal, petitioner filed several motions with the IJ to re-open his immigration proceedings. He was not successful.
On April 24, 2000, petitioner turned to the United States District Court for the District of Massachusetts, filing a writ of habeas corpus, attacking a state criminal conviction. The writ was dismissed and petitioner filed an appeal with the U.S. Court of Appeals for the First Circuit, which affirmed.
On June 26, 2001, Petitioner then filed a petition with the BIA claiming that he was entitled to § 212(c) relief in light of INS v. St. Cyr, 533 U.S. 289 (2001). This time, the BIA issued a decision remanding the case to the IJ to consider whether petitioner was eligible for relief. Unbeknownst to the BIA, on November 28, 1999, petitioner filed another writ of habeas corpus in the Massachusetts federal court, also claiming eligibility for § 212(c) relief. The District Court denied the application, and the First Circuit affirmed on October 24, 2001.
Thereafter the INS filed a motion with the IJ to pretermit any further proceedings based upon his claim that he was eligible for § 212(c) relief. The IJ agreed. On January 2, 2003, the BIA affirmed the IJ's decision. Accordingly, petitioner's order of removal became final then, despite petitioner's later motions to reconsider. Petitioner then attempted to appeal to the First Circuit. The First Circuit dismissed his appeal.
Petitioner, now having been detained since his final order of removal on January 2, 2003, contends that pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001), he is entitled to be released from custody. The government disagrees, and has moved to dismiss the petition. Petitioner has objected. A hearing was held on February 26, 2004 on this matter.
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, inter 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, Podoprigora challenges his continued detention, citing as authority for his release Zadvydas v. Davis, 533 U.S. 678 (2001). InZadvydas, 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. at 689.
In a habeas proceeding challenging continued detention in this context,
"[t]he habeas court must ask whether the detention in question exceeds a period reasonably necessary to secure removal. It should measure reasonableness in terms of the statute's basic purpose, namely, assuring that the alien is present at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized by statute. In that case, of course, the alien's release may and should be conditioned upon any of the various forms of supervised release that are appropriate in the circumstances, and the alien may return to custody upon a violation of those conditions.Id. at 699-700. Thus, the Supreme Court found a six month detention following a final order of removal presumptively reasonable. But the court stated:
[F]or detention to remain reasonable, as the period of prior post removal confinement grows, what counts as the "reasonable foreseeable future" conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.Id. at 701. Zadvydas places the burden on the alien to show that after a detention period of six months, there is "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future." Id. The INS must then introduce evidence to refute that assertion. See id.
Here, Petitioner contends that he has been detained beyond the six month period announced in Zadvydas. Indeed, at the time the petition was filed, petitioner has been in post-removal order detention for some nine months. To the date of this writing, he has now been detained for fourteen months. But, despite his continued detention, petitioner must also demonstrate that there is no significant likelihood of removal in the reasonably foreseeable future. Id. at 701. To this end, petitioner asserts that the Ukraine refuses to supply the necessary travel documents after repeated attempts by the INS to procure such documents. There is no dispute that the Ukraine has, so far, refused to issue the travel documents.
The government, on the other hand, contends that the failure of the Ukraine to issue the necessary documents rests in part on the lack of cooperation by the petitioner. Apparently the government of Ukraine requires the petitioner's original passport, or copies thereof, but Podoprigora has failed to produce either. Accordingly, the government contends that the initial ninety day removal period of 8 U.S.C. § 1231(a)(2) should be tolled.See 8 U.S.C. § 123 l(a)(1)(C) (suspending the ninety day removal period if the alien refuses to cooperate in removal efforts).
While Podoprigora admits that he has not produced his passport, or a copy thereof, he asserts that he is incarcerated, has been continuously incarcerated, and accordingly, it is impossible for him to produce his passport. Podoprigora also contends that his passport no longer exist. There is some credit to the petitioner's contentions, as it is undisputed that he has been continuously incarcerated and cannot retrieve the passport (if it exists) himself. The Court inquired at the hearing whether the petitioner had acquaintances in the Ukraine who could possibly help him produce a birth certificate or other identifying documents. The petitioner indicated that he has been in this country for eleven years and has lost touch with any friends or acquaintances that he had in the Ukraine. He further asserted that he has given the INS all of the information they have requested since 1999, other than his passport.
Thus, I find that the government's contention that the petitioner has been uncooperative without merit. The petitioner cannot produce that which he does not have. This lack of the petitioner's passport, or copies thereof, appears to be the obstacle in the petitioner's removal to the Ukraine.
Notwithstanding this obstacle, the government contends that the removal process is ongoing. The government has submitted an affidavit indicating the recent steps taken to procure the necessary documents. The government has been in contact with the Consulate General of the Ukraine in New York City. See Government's Exhibit F, Affidavit of Joseph O'Malley, dated November 12, 2003. Despite the Consulate General's current refusal to issue the documents, the government has taken the matter to the Ukranian Embassy in Washington, D.C. It is further undisputed that the Ukraine regularly repatriates its citizens. See Government's Exhibit H, Declaration of Tammy Cyr-Talbott, dated October 27, 2003.
Petitioner, at the hearing, presented to the Court a written document in support of his objection to dismissal. He also argued and presented additional points orally. Significantly, petitioner contends that he does not object to his removal to the Ukraine. The only basis for his instant habeas petition is to be released from custody, since he has been in post-removal order custody for some fourteen months. Petitioner, however, offered no evidence indicating that his removal was not in the reasonably foreseeable future. Indeed, the government continues to take steps to remove him. See Declaration of Tammy Cyr-Talbot, dated February 24, 2004. At the hearing on this matter, the government indicated that it has and will continue to diligently purse petitioner's removal.
Pursuant to Zadvydas. petitioner has the burden to demonstrate that there is good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future. Zadvydas, 533 U.S. at 701. Considering that the government is continuing to remove the petitioner, and considering that the government has continuously taken steps to secure his departure from this land, the petitioner, at this time, has not demonstrated that his removal is not in the reasonably foreseeable future. Accordingly, the government's motion to dismiss should be granted.
Notwithstanding the merits of the petition which this writer just discussed above, the government alternatively contends that the instant petition should be dismissed on another ground. The government contends that the petitioner has not exhausted his administrative remedies. In response to Zadvydas, the Attorney General promulgated custody reviews for aliens who are in post-removal order detention. See 8 C.F.R. § 241.13. While the petitioner contends that he has sent letters to various INS officials, there is no dispute that the petitioner has not applied for a custody review pursuant to this regulation. Thus, petitioner has not exhausted his administrative remedies, which provides a separate, independent basis for dismissal of his instant habeas petition.
The petitioner should note that if circumstances change, i.e. the Ukranian Embassy outright refuses to issue travel documents, he is not otherwise removed from the United States, and his custody is continued in the United States, he may bring another petition for a writ of habeas corpus, after he has attempted to be released pursuant to 8 C.F.R. § 241.13.
Conclusion
For the reasons set forth above, I recommend that the government's motion to dismiss be granted. The instant petition for a writ of habeas corpus should 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); Local Rule 32. Failure to file timely, specific objections 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 (1 st Cir. 1986) (per curiam); Park Motor Mart. Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).