United States District Court, M.D. Pennsylvania
November 8, 2005.
TUNKARA MODOU, Petitioner,
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT INTERIM FIELD OFFICE, Respondent.
The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
On October 28, 2005, the Petitioner, an alien detainee housed
at the York County Prison, York Pennsylvania, in the custody of
the United States Bureau of Immigration and Customs Enforcement
("ICE"), filed the instant emergency petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. The petitioner claims
that his continued detention is unlawful under Zadvydas v.
Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), as
he has been held in detention more than 90 days after the
issuance of his order of removal. Petitioner has paid the
requisite filing fee in this matter. For the reasons set forth
below, the petition will be dismissed as premature. II. Background.
Petitioner is a native of Gambia. He is subject to a final
order of removal issued on June 19, 2005. (Doc. 1, Petition). He
alleges that he has fully cooperated with ICE in removal efforts
by providing both his passport and birth certificate. However,
Gambia has not yet granted him acceptance or issued a travel
document on his behalf. (Id.) Modou contends that he has been
held past the presumptively valid 90-day removal period and his
continued detention violates 8 U.S.A. § 1231(a)(1)(c). (Id.) He
seeks his immediate release from detention.
The detention, release, and removal of aliens subject to a
final order of removal is governed by the provisions of
8 U.S.C. § 1231. Pursuant to § 1231(a), the Attorney General has 90 days
to remove an alien from the United States after his order of
removal becomes administratively final. During this 90-day
period, which is referred to in immigration terms as "the removal
period,"*fn1 detention of the alien is mandatory. See 8
U.S.C. § 1231(a)(2). At the conclusion of the 90 day period, if the alien
has not been removed and still remains in the United States, his
post-removal-period detention may be continued only as long as
"reasonably necessary" to effectuate his removal from the United
States. Zadvydas, 533 U.S. at 689, 121 S.Ct. 2498.
Alternatively, he may be released under the supervision of the
Attorney General. See 8 U.S.C. §§ 1231(a)(3) & (6).
Contrary to Modou's belief, the Supreme Court in Zadvydas,
supra, held that the presumptively reasonable
post-removal-detention period of an alien pursuant to
8 U.S.C. § 1231(a)(6) is six months, not 90 days. Zadvydas,
533 U.S. at 701, 121. S.Ct. at 2505. Detention past this presumptively
reasonable period "does not mean that every alien not removed
must be released." (Id.) 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.)
As suggested by the Petition, Modou's order of removal was
issued on June 19, 2005. Petitioner's 90 day mandatory detention
period thus ended on or about September 19, 2005. At this point,
the question is whether the presumptively reasonable six-month
period of post-final-order detention has expired, and, if so,
whether there is good reason to find that there is no significant
likelihood of Modou's removal in the reasonably foreseeable
future. See Qing Di Wang v. Carbone, No. Civ. A. 05-2386JAP,
2005 WL 2656677 (D.N.J. October 17, 2005) (citing Akinwale v.
Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002)).
Based on the facts asserted in the Petition, Modou's
presumptively reasonable six-month period of detention has not
yet expired. Assuming Modou's order of removal became final on
June 19, 2005, the six-month period will expire on or before
December 19, 2005. Therefore, Modou's petition is premature. See
Okpoju v. Ridge, 115 Fed.Appx. 302 (5th Cir. 2004) (six-month
period must have expired at the time habeas petition is filed);
Akinwale, supra (same). As Modou's Petition is premature, there
is no need for the Court to examine whether Petitioner has established "that there is no significant likelihood of [his]
removal in the reasonably foreseeable future." Zadvydas,
533 U.S. at 701, 121. S.Ct. at 2505.
For the reasons set forth above, Petitioner's § 2241 petition
is dismissed without prejudice as premature. ORDER
AND NOW, this 8th day of November, 2005, upon consideration of
the Emergency Petition for Writ of Habeas Corpus (doc. 1), it is
1. The Emergency Petition for Writ of Habeas Corpus
(doc. 1) is dismissed without prejudice.
2. The Clerk of Court shall close this file.
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