The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Presently ripe for disposition is Diljit Singh's ("Singh")
petition for writ of habeas corpus. (Doc. 1). Singh is a detainee
of the Bureau of Immigration and Customs Enforcement ("ICE") who
is seeking release from continued indefinite detention. (Doc. 1).
For the reasons set forth below, the petition will be denied
Singh, a native and citizen of India, entered the United States
at an unknown place and on an unknown date. (Doc. 5-2, p. 2). He
was not admitted or paroled after inspection by an immigration
officer. On February 28, 2000, the Immigration and Naturalization
Service issued a notice to appear informing Singh that he was
charged with being subject to removal from the United States in
that he was "an alien present in the United States without being
admitted or paroled, or who arrived in the United States at any
time or place other than as designated by the Attorney General."
(Doc. 5-2, p. 2). On March 8, 2005, he was notified of additional
charges of inadmissibility/deportability based upon the fact that
he was "convicted on December 6, 2000 in the Court of Common
Pleas of Philadelphia, Pennsylvania, of 3 counts of Solicitation
to Commit Involuntary Deviate Sexual Intercourse. . . ." (Doc. 5-2,
p. 4). On March 9, 2005, Singh was ordered removed from the
United States to India. It does not appear that Singh appealed
He was taken into ICE custody on February 8, 2005. A Post Order
Custody Review was conducted on May 31, 2005. (Doc. 5-2, pp.
29-35). The reviewing officer commented as follows:
Subject is a registered sex offender wit the Megans
Law Unit located in Harrisburg, PA. Due to the nature
of the crime, and it involving a minor, this officer
believes the subject to be a threat to the community
A travel document request was sent to HQDRO. This
officer recently spoke to Tammy Cyr of the Travel
Document Unit in HQDRO, she stated that they are
still working on the travel document but it may be a
few months for issuance. Considering the above facts,
this officer recommends that the subject be kept in
ICE custody pending the issuance of a TD. If a TD is
not received by the 170th day, the subject should be
released until one is issued.
(Doc 5-2, p. 35). On June 10, 2005, a decision to continue
detention was issued stating the following:
Your file indicates that you were convicted in the
State of Pennsylvania of Involuntary Deviate Sexual
Intercourse and Corruption of a Minor. Because of the
severity of the crimes, and the fact that they were
committed on a minor, the Immigration and Customs
Enforcement considers you a threat to the community
if released. ICE believes the Indian Embassy is
working on issuing a travel document on your behalf.
(Doc. 5-2, p. 37). Singh's custodial status was again reviewed in
September 2005 and a decision to continue detention was issued on
October 4, 2005. Singh was informed that "[a] request for a travel document was submitted to the Consulate of India and the
process to verify your identity is ongoing. The government of
India regularly issues documents to effect the repatriation of
its nationals." (Doc. 5-2, p. 41).
Petitioner filed his present petition for writ of habeas corpus
alleging that his indefinite detention is unconstitutional. He is
seeking immediate release. (Doc. 1).
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 90 days to remove an alien from the
United States after his order of removal, during which time
detention is mandatory. Continued detention beyond the mandated
90-day removal period is authorized, but only as long as
"reasonably necessary" to effectuate removal from the country.
Zadvydas v. Davis, 533 U.S. 678, 689 (2001). "Once removal is
no longer reasonably foreseeable, continued detention is no
longer authorized." Id. at 699. "The [Zadvydas] Court further
held that the presumptive period during which the detention of an
alien is reasonably necessary to effectuate his removal is six
months; after that, the alien is eligible for conditional release
if he can demonstrate that there is "no significant likelihood of
removal in the reasonably foreseeable future."'" Clark v.
Martinez, 543 U.S. 371, 125 S.Ct. 716, 722 (2005) (quoting
Zadvydas, 533 U.S. at 701).
Singh failed to meet his burden under Zadvydas of showing
that removal is unlikely in the reasonable future. Singh's status
was reviewed in May 2005 and September 2005. Both times, it was
concluded that Singh was a threat to the community if released.
In addition, travel documents were requested from the Consulate of India and the
process to verify Singh's identity was ongoing. It was noted that
"[t]hat the government of India regularly issues documents to
effect the repatriation of nationals." (Doc. 5-2, p. 41).
Singh contends that he has contacted the Indian Embassy, and
was informed that they will not issue travel documents and that
"they don't understand why he is being detained." (Doc. 8, 4).
However, Singh has produced no documentary evidence from the
Indian Embassy, or anyone connected with the government of India
to substantiate his assertion that travel documents will not be
issued. Under Zadvydas, Singh must provide "good reason" to
believe there is no likelihood of removal, 533 U.S. at 701, and
Singh has failed to make the showing here. Accordingly, Singh's
removal from the United States remains reasonably foreseeable and
his petition will be denied. Singh is free to file another § 2241
petition should he develop good reason to believe that removal is
no longer reasonably foreseeable.
The court cautions ICE that, while we cannot say on the current
record that "there is no significant likelihood of removal in the
reasonably foreseeable future," Zadvydas, 533 U.S. at 701, at
some point in time, the inability of ICE to obtain travel
documents may provide "good reason" to believe the removal is
unlikely to be carried out. There is no evidence of record that
Singh has refused to cooperate in procuring travel documents. Nor
has ICE explained or documented any recent steps taken to procure
such papers. "For detention to remain reasonable, as the period
for confinement grows, what counts as the "reasonably foreseeable
future" conversely would have to shrink." Id. Due to these
concerns, ICE will be directed to conduct an additional custody review within sixty days and notify the
court of the outcome.
AND NOW, to wit, this 28th day of December 2005, IT IS
HEREBY ORDERED that:
1. The petition for writ of habeas corpus is DENIED
without prejudice to Singh to file another § 2241
petition should he develop good reason to believe
that removal is no longer reasonably foreseeable.
2. ICE is directed to conduct a custody review within sixty
days of the date of this Memorandum and notify the court of the
3. The Clerk of Court is directed to ...