The opinion of the court was delivered by: JAMES McCLURE Jr., District Judge
Jean Sali ("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 petition is accompanied by an in forma pauperis
application. Named as Respondents are Warden Thomas Hogan of the
York County Prison, Secretary Michael Chertoff of the Department
of Homeland Security, and Acting Field Office Director Thomas
Decker of the ICE.
Sali describes himself as being a 49 year old citizen of Haiti
who entered the United States "without admission or parole" on October 29, 2002.
Record document no. 1, ¶ 8. Petitioner states that he was
convicted of conspiracy to commit alien smuggling and sentenced
to a 27 month term of imprisonment "in federal district court in
Florida." Id. at ¶ 9. He adds that an arrest in Pennsylvania on
a charge of possession of marijuana did not result in a criminal
conviction. During May, 2004, Petitioner was transferred into the
custody of the ICE. An Immigration Judge denied Sali's request
for withholding and deferral of removal on February 22, 2005.
His present petition does not challenge the legality of his
deportation but, rather, his continued detention pending removal.
Petitioner indicates that he has been subjected to a prolonged
detention without any meaningful review. Sali maintains that his
indefinite detention in ICE custody while awaiting deportation
violates international law and constitutes cruel and unusual
punishment under the Eighth Amendment. He asks that this Court
grant him immediate release based on the Supreme Court's decision
in Zadvydas v. Davis, 533 U.S. 678 (2001).
Attached to the petition is a copy of a June 23, 2005 letter
from Acting Field Office Director Decker which advised Sali that
his detention would continue and that jurisdiction of his custody
would be transferred to the ICE's Headquarters Post-order
Detention Unit (HQPDU) if he was not released or removed by
September 15, 2005. See id. at Exhibit A. On September 15,
2005, Petitioner states that he supplied the HQPDU with a written request for release on parole and supporting
affidavits. See id. at Exhibit B. Sali asserts that although
more than thirty (30) days have elapsed since his submission, the
HQPDU has not provided him with a written response.
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, Sali 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
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).
Sali alleges that he has challenged his continued detention by
filing a request for release with the HQPDU which has gone
unanswered. Consequently, the Respondents are instructed, in
accordance with the directive of the Attorney General, to treat,
as of this date, Sali's present petition for a writ of habeas
corpus under § 2241 as a request for release under
8 C.F.R. § 241.1. See Zhang v. United States 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. Sali may reassert his present claims in a new
§ 2241 action, if the HQPDU fails to act on his request in a
timely manner. Consequently,
IT IS HEREBY ORDERED:
1. Petitioner's request to proceed in forma pauperis is
2. The petition for writ of habeas corpus to the extent it
challenges Sali's ongoing detention is construed as a request for
release under 8 C.F.R. § 241.13. The ICE shall respond ...