Opinion
Civil Action No. 04-CV-1602.
August 12, 2004
REPORT AND RECOMMENDATION
Before this court is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. The petitioner, Ismoil Samadov, is currently incarcerated at the York County Prison in York, Pennsylvania. For the reasons set forth below, this court recommends that Samadov's petition be DISMISSED without prejudice.
Samadov is a native and citizen of Uzbekistan who entered the United States on February 26, 1999, as a nonimmigrant student to attend an English language school in Boston for one month. Samadov did not leave the United States after one month as required, but remained and lived at various times in Georgia, South Carolina and Philadelphia. He stopped attending school, and failed to report to the immigration authorities or to apply for permission to remain in the United States. As a result, Samadov was apprehended by immigration authorities in May 2002. He was issued a Notice to Appear and was released on bond in June 2002.
In December 2003, Uzbekistan requested that United States authorities extradite Samadov to Uzbekistan to face criminal charges in that country. Samadov again was taken into immigration custody. On January 23, 2004, the Immigration Judge ("IJ") denied Samadov's request for release from custody.
Thereafter, Samadov filed a motion for a redetermination of his bond request. The IJ found Samadov to be a flight risk and denied his request for bond. He was ordered held on his application for withholding and protection pursuant to the Convention Against Torture ("CAT"). Samadov appealed the custody decision to the Board of Immigration Appeals ("BIA").
On February 19, 2004, while still in ICE custody, Samadov married a U.S. citizen, Pamela Sue Haskell. Samadov asserted that his marriage was a material change in circumstances.
On March 25, 2004, the BIA denied Samadov's request for a change in custody status. The BIA noted that Samadov is being sought by Uzbekistan in order to be prosecuted for terrorist related activities, and that he had failed to establish that he was not a threat to national security, a danger to the community, or a risk of flight. The BIA found that Samadov had failed to distinguish his case from that of Matter of Khalifah, 21 I N Dec. 107 (BIA 1995), which holds that detaining without bond an alien subject to prosecution for alleged terrorist activities by the country to which ICE seeks to remove him is appropriate. Further, the BIA determined that Samadov was not likely to be granted any permanent relief from removal because he did not file a timely application for asylum and because withholding of removal would not afford him the right to remain in the United States. Finally, the BIA found that Samadov had failed to establish any substantial family ties to the United States.
On May 4, 2004, Samadov's custody status was again reviewed by ICE. On May 11, 2004, the IJ issued a written opinion in support of her denial of Samadov's bond redetermination motion. The IJ specifically considered an opinion letter from the State Department submitted by Samadov. A review of the letter reveals that it was provided by the State Department in response to a request for information relating to Samadov's asylum claim. The letter does not address the issue of whether Samadov presents a threat to the national security of the U.S. The IJ was not persuaded by the fact that the State Department does not have evidence linking Samadov to terrorism in Uzbekistan because "the State Department did not hear the testimony nor observe the respondent first hand The Court is concerned with whether the respondent is a danger to the community of the United States, not Uzbekistan, and has determined that he may pose a significant risk." See Denial of Bond Redetermination Motion, May 11, 2004. The IJ held further that Samadov's "testimony and general mien in the course of his merits hearing in which he asserted among other things, that the destruction of the World Trade center was not committed by Islamic terrorists, leads this Court to believe that he could pose a risk to national security should he be released."Id. On May 13, 2004, the ICE Field Office Director in Baltimore reviewed and approved Samadov's custody status.
In addition to seeking release from custody, in ongoing parallel proceedings, Samadov is also seeking to avoid removal. On March 16, 2004, the IJ found Samadov removable as charged; however, he was granted withholding of removal. Samadov's asylum claim was not adjudicated because removal was withheld. See Order of the Immigration Judge, April 15, 2004. Both Samadov and ICE appealed that order. Although Samadov remained subject to an order of removal, he sought to avoid removal by asserting his asylum claim. The immigration authorities appealed the grant of withholding of Samadov's removal to Uzbekistan.
Samadov filed this petition for habeas corpus relief on April 12, 2004, seeking release from custody during the pendency of his appeal. Samadov claimed that the government had abused its discretion by failing to release him on a reasonable bond or on his own recognizance. ICE asserted that the decision to detain Samadov pending a decision whether to remove him from the U.S. is entirely within the Attorney General's discretion; and therefore, the petition should be dismissed.
On July 21, 2004, the BIA issued an order denying review of Samadov's custody status as moot. The BIA noted that on July 16, 2004, it had dismissed the appeals by both the Department of Homeland Security and Samadov from the IJ's decision ordering Samadov's removal but granting withholding of removal to Uzbekistan. Because the order of removal was now final, the BIA no longer had the authority to set bond conditions. 8 C.F.R. § 1236.1(d). In consideration of this order, ICE has asked that the instant petition be denied as moot. Samadov does not agree.
Under the INA, 8 U.S.C. § 1101, et seq., ICE has a ninety (90) day statutory "removal period" in order to effect Samadov's removal from the United States. 8 U.S.C. § 1231(a)(1)(A). The removal period begins at the latest of three occurrences: the date the order of removal becomes administratively final; the date of any reviewing court's final order; or the date the alien is released from criminal confinement. See 8 U.S.C. § 1231(a)(1)(B)(i)-(iii). In Samadov's case, the removal period began on July 16, 2004, when the order of removal became administratively final. Detention is mandatory during the removal period. 8 U.S.C. § 1227(a)(2). If ICE is unable to remove the alien during those 90 days, however, the government "may" continue to detain the alien if the Attorney General has determined the alien to be a "risk to the community or unlikely to comply with the order of removal. . . ." 8 U.S.C. § 1231(a)(6); see also 8 C.F.R. § 241.4(a).
Here, Samadov has just begun this initial stage of the removal period during which detention is mandatory. Thereafter, he will be permitted custody reviews and the opportunity to establish that he is entitled to release. See Zadvydas v. Davis, 121 S.Ct. 2492, 2498 (interpreting 8 U.S.C. § 1231(a)(6) to limit an alien's post-removal-period detention "to a period reasonably necessary to bring about that alien's removal from the United States"). The regulations provide that the district director may continue an alien in custody beyond the removal period if the decision-maker determines that the alien is unlikely to comply with the removal order or is a risk to the community. 8 C.F.R. § 241.4(a)(4). If such an alien demonstrates to the satisfaction of the Attorney General or his designee that his release would not pose a danger to the community or a significant flight risk, the district director may, in the exercise of discretion, order the alien released from custody on such conditions as the district director may prescribe, including bond in an amount sufficient to ensure the alien's appearance for removal. See 8 C.F.R. § 241.4(d)(1). The regulations set forth specific criteria for release, as well as factors to be weighed in considering whether to recommend further detention or release of a detainee. See 8 C.F.R. § 241.4(e), (f).
Under these circumstances, this court finds that Samadov's detention is mandatory at this time and not subject to judicial review. Thus, the petition should be dismissed without prejudice to revisit this issue as discussed above.
Accordingly, this court makes the following:
RECOMMENDATION
AND NOW, this ____ day of August, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be DISMISSED without prejudice. It is further RECOMMENDED that there is no probable cause to issue a certificate of appealability.