The opinion of the court was delivered by: JAMES McCLURE Jr., District Judge
Isad Cosovic ("Petitioner"), a detainee of the Bureau of
Immigration and Customs Enforcement ("ICE") presently confined at
the York County Prison, York, Pennsylvania, filed this pro se
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
The required filing fee has been paid. Named as Respondents are
the ICE and its Regional Field Office Director.
Cosovic identifies himself as being a native of Albania.
Petitioner adds that he was born "in the former Yugoslavia region
that is presided over and serviced by the Serbian/Montenegrin
government." Record document no. 1, p. 1. His petition acknowledges that a final order of deportation was entered
against him on April 16, 2005. He adds that the
Serbian/Montenegrin government will not issue him a travel
Cosovic's present action does not challenge the legality of his
deportation but, rather, his continued detention pending removal.
Petitioner states that he "has been lingering in detention for
approximately thirteen months" and it is extremely unlikely that
he will be deported within the reasonably forseeable future.
Id. Consequently, Cosovic maintains that his prolonged
detention in ICE custody while awaiting deportation violates his
due process rights. He asks that this Court grant him supervised
Based on the Supreme Court's decision in Zadvydas v. Davis,
533 U.S. 678 (2001), this Court will refer the petition to the
ICE as a request for review under 8 C.F.R. § 241.4.
Detention, release, and removal of aliens ordered removed is
governed by the provisions of 8 U.S.C. § 1231. Under § 1231(a),
the Attorney General has ninety (90) days to remove an alien from
the United States after his order of removal, during which time detention is mandatory.*fn1 At the conclusion of the
ninety (90) day period, the alien may be held in continued
detention, or may be released under continued supervision.
8 U.S.C. §§ 1231(a)(3) & (6).
In Zadvydas, the United States Supreme Court addressed the
issue of whether § 1231(a)(6) authorizes the Attorney General to
detain a removable alien indefinitely beyond the ninety (90) day
removal period or only for a period reasonably necessary to
effectuate the alien's deportation. Reasoning that the indefinite
detention of aliens "would raise serious constitutional
concerns," the Court concluded that the statute "limits an
alien's post-removal-period detention to a period reasonably
necessary to bring about the alien's removal from the United
States. It does not permit indefinite detention." Zadvydas,
533 U.S. at 689. Furthermore, "once removal is no longer reasonably foreseeable, continued detention is no longer
authorized by statute." Id. at 699. To establish uniformity in
the federal courts, the Court recognized six (6) months as a
"presumptively reasonable period of detention." Id. at 701.
The Supreme Court further directed that if the alien provides
good reason to believe that there is no significant likelihood of
deportation in the reasonably foreseeable future at the
conclusion of the six (6) month period, the burden shifts to the
government to "respond with evidence sufficient to rebut that
showing." Id. It stated that not every alien must be released
after six (6) months; but, rather, an alien may still be detained
beyond six (6) months "until it has been determined that there is
no significant likelihood of removal in the reasonably
foreseeable future." Id. The Zadvydas holding was limited to
removable aliens. In Clark v. Martinez, ___ U.S. ___,
125 S.Ct. 716, 727 (2005), the Supreme Court extended Zadvydas to two
Mariel Cubans who had been deemed inadmissible to the United
States. Thus, Cosovic is entitled to protection under Zadvydas
regardless of whether he is a removable or an inadmissible alien.
In response to Zadvydas, the ICE adopted 8 C.F.R. § 241.13.
The regulation "establishes special review procedures for those
aliens who are subject to a final order of removal and are
detained under the custody review procedures provided at § 241.4
after the expiration of the removal period, where the alien has
provided good reason to believe there is no significant likelihood of removal to the
country to which he or she was ordered removed, or to a third
country, in the reasonably foreseeable future."
8 C.F.R. § 241.13(a). Specifically, an eligible alien may make a written
request for release to the ICE's Headquarters Post-order
Detention Unit (HQPDU), "asserting the basis for the alien's
belief that there is no significant likelihood that the alien
will be removed in the reasonably foreseeable future to the
country to which the alien was ordered removed and there is no
third country willing to accept the alien."
8 C.F.R. § 241.13(d)(1).
Within ten (10) business days of receipt of the request, the
HQPDU must provide the alien a written response acknowledging
receipt of his request and explaining the procedures that will be
used to evaluate the request. 8 C.F.R. § 241.13(e)(1). The HQPDU
may grant an interview to the alien if such an interview would
"provide assistance in rendering a decision." 8 C.F.R. § 241.13
(e)(5). The factors that the HQPDU must consider include:
the history of the alien's efforts to comply with the
order of removal, the history of the Service's
efforts to remove aliens to the country in question
or to third countries, including the ongoing nature
of the Service's efforts to remove this alien and the
alien's assistance with those efforts, the reasonably
foreseeable results of those efforts, the views of
the Department of State regarding the prospects for
removal of aliens to the country or countries in
question, and the receiving country's willingness to
accept the alien into its territory. 8 C.F.R. § 241.13(f). The regulation further provides
that the "HQPDU shall issue a written decision based
on the administrative record, including any
documentation provided by the alien, regarding the
likelihood of removal and whether there is a
significant likelihood that the alien will be removed
in the reasonably foreseeable future under the
circumstances. The HQPDU shall provide the decision
to the alien, with a copy to counsel of record, by
regular mail." 8 C.F.R. § 241.13(g).
Inasmuch as Cosovic has challenged his continued detention by
filing a petition for a writ of habeas corpus under § 2241, the
Respondents are instructed, in accordance with the directive of
the Attorney General, to treat, as of this date, the petition as
a request for release under 8 C.F.R. § 241.1. See Zhang v.
United Sates Attorney General, Civil No. 3:CV-02-336 slip op.
(M.D. Pa. March 11, 2002) (Conaboy, J.); Singh v. INS, Civil
No. 1:CV-01-1820, slip op. (M.D. Pa. Oct. 2, 2001) (Rambo, J.).
The ICE shall respond to the request within thirty (30) days as
mandated. Having referred the matter to the ICE for disposition
under existing review procedures, the petition will be dismissed
without prejudice. Consequently,
IT IS HEREBY ORDERED:
1. The petition for writ of habeas corpus to the
extent it challenges Cosovic's ongoing detention is
construed as a request for release under
8 C.F.R. § 241.13. The ICE shall respond to the request as
mandated under said regulations.
2. Petitioner's challenge to his ongoing detention,
having been referred to the ICE for disposition under
its existing review procedures, is hereby dismissed
3. The Clerk of Court is directed to serve a copy of
the petition and this ...