United States District Court, M.D. Pennsylvania
November 1, 2005.
RAAD HASAN, Petitioner
DEPARTMENT OF HOMELAND SECURITY, Respondent.
The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge
Raad Hasan ("Hasan"), presently a detainee of the Bureau of
Immigration and Customs Enforcement (BICE), incarcerated at the
York County Prison, York, Pennsylvania, filed the instant
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241
on October 12, 2005. (Doc. 1). For the reasons set forth below,
Hasan's petition will be referred to BICE as a request for review
under 8 C.F.R. § 241.13.
I. Factual Background
Hasan, who was born in Kuwait to a Jordanian family, is subject
to a final order of removal from the United States dated April
15, 2005. (Doc. 1, p. 1). He submits that he is in "deportation
limbo" because: (1) Kuwait does not grant citizenship by birth,
(2) he is unable to obtain citizenship since neither of his
parents are citizens of Kuwait, and (3) Jordan has declined to
issue travel documents to him. (Doc. 1, p. 2). He alleges that
his prolonged detention in BICE custody violates his
constitutional rights because his removal is not reasonably
forseeable. (Doc. 1). He is seeking immediate release. II. Discussion
Detention, release, and removal of aliens is cabined by the
provisions of 8 U.S.C. § 1231. Under § 1231(a), the Attorney
General has ninety days to remove an alien from the United States
after an order of removal, during which time detention is
mandatory. Section 1231(a)(1)(B) provides:
The removal period begins to run on the latest of the
(i) The date the order of removal becomes
(ii) If the removal order is judicially reviewed and
if the court orders a stay of the removal of the
alien, the date of the court's final order.
(iii) If the alien is detained or confined (except
under an immigration process), the date the alien is
released fromdetention or confinement. At the
conclusion of the 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).
8 U.S.C. § 1231. 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 v. Davis,
533 U.S. 678
, 689 (2001). "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, a period of six months was recognized as a "presumptively
reasonable period of detention." Id. at 701. If, at the
conclusion of the six month period, the alien provides good
reason to believe that there is no significant likelihood of
deportation in the reasonably foreseeable future, the burden
shifts to the government to "respond with evidence sufficient to
rebut that showing." Id. Not every alien must be released after six months. An alien may
still be detained beyond six months "until it has been determined
that there is no significant likelihood of removal in the
reasonably foreseeable future." Id.
Following Zadvydas, regulations have been promulgated to meet
the criteria established by the Supreme Court. See
8 C.F.R. § 241.4. Prior to the expiration of the mandatory ninety day
removal period, the district director shall conduct a custody
review for an alien where the alien's removal cannot be
accomplished during the prescribed period.
8 C.F.R. § 241.4(k)(1)(I). When release is denied pending the removal, the
district director may retain responsibility for custody
determinations for up to three months, or refer the alien to the
Headquarters Post Order Detention Unit ("HQPDU") for further
custody review. 8 C.F.R. § 241.4(k)(1)(ii). Once jurisdiction is
transferred, an eligible alien may submit a written request for
release to the HQPDU asserting the basis for the alien's belief
that there is no significant likelihood that he will be removed
in the reasonably foreseeable future. 8 C.F.R. § 241.13(d)(1).
Based upon the fact that the ninety day removal period has
expired, it is presumed that Hasan was given a custody review and
was denied release. The passage of time indicates that
jurisdiction to make a determination concerning Hasan's custody
would now lie with the HQPDU. There is no indication that Hasan
has filed a written request with the HQPDU. Consequently, BICE
will be ordered to treat Hasan's petition as a request for
release under 8 C.F.R. § 241.13. BICE shall respond to the
request within thirty days. Having referred the matter to the government for disposition
under existing review procedures, Hasan's petition will be
AND NOW, this 1st day of November, 2005, upon consideration of
the petition for writ of habeas corpus (Doc. 1), it is hereby
1. Petitioner's application to proceed in forma
pauperis (Doc. 2) is GRANTED for the purpose of the
filing of the action only.
2. As of the date of this Order, BICE shall treat the
petition for writ of habeas corpus as a request for
release under 8 C.F.R. §§ 241.4 and 241.13. BICE
shall provide petitioner with a response to his
request within thirty days.
3. The Clerk of Court is directed to serve a copy of
the petition and this order on respondents and the
United States Attorney.
4. The Petition for Writ of Habeas Corpus (Doc. 1) is
5. The Clerk of Court is directed to CLOSE this case.
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