The opinion of the court was delivered by: Judge Vanaskie
Duay J. Jado, a detainee of the of the Immigration and Customs Enforcement subsection of the Department of Homeland Security (ICE) presently confined at the York County Prison, York, Pennsylvania, filed this prosehabeas corpus petition pursuant to 28 U.S.C. § 2241. Petitioner has also submitted an application requesting leave to proceed in forma pauperis. For the following reasons, Jado will be granted leave to proceed in forma pauperis for the sole purpose of filing the instant petition, and his prematurely filed Petition will be referred to ICE for review under its regulations.
Named as Respondents are ICE, Warden Mary Sabol of the York County Prison, ICE Field Office Director Thomas Decker, and the United States' Attorney General.*fn1 Petitioner states that he "was born in Greece to foreign parents from Iraq." Dkt. Entry # 1, p. 2. Jado asserts that upon his December 22, 2008 completion of a federal criminal sentence,*fn2 he was taken into custody by ICE. Since that date he has allegedly remained in ICE custody without having been afforded a timely and meaningful opportunity to obtain his release.
Despite his full cooperation, Petitioner claims that ICE has been unable to remove him to any country. He adds that there is no significant likelihood that he will be removed in the foreseeable future. Relying upon Zadvydas v. Davis, 533 U.S. 678, 689 (2001), Jado seeks his immediate release from his "continued indefinite detention" on the grounds that the "ninety-day statutory removal period and six-months presumptively reasonable period for continued removal efforts both have passed." Dkt. Entry # 1, p. 3.
The present petition for habeas corpus is dated May 8, 2009 and will be presumed filed as of that date. See Houston v. Lack, 487 U.S. 266 (1988)(a prisoner's action is deemed filed at the time it is given to prison officials for mailing to the Court). Although Petitioner maintains that he has been in ICE custody since December 22, 2008, he does not specifically state that he is subject to a final order of removal. There is also no indication from Jado that the Court of Appeals has entered or been requested to enter a stay of removal. His Petition does vaguely assert that he has exhausted all administrative remedies to the extent required by law and that his indefinite detention is not authorized under 8 U.S.C. § 1231(A)(6). See id. Since § 1231(A)(6) only applies to inadmissible or criminal aliens subject to an order of removal, it will be presumed for purposes of this discussion that a final order or removal has been entered in Jado's case.
After the entry of a final administrative order of removal, 8 U.S.C. § 1231 grants the Attorney General ninety (90) days in which to remove an alien from the United States, during which time detention is mandatory.*fn3 Accepting Petitioner's contention that he has been in continuous ICE custody since December 22, 2008 and assuming that a final order of removal was entered in his case prior to February 15, 2009, the ninety (90) day period has expired.*fn4 At the conclusion of the ninety (90) day period, the alien may be held in continued detention, or may be released under continued supervision. See § 1231(a)(3) & (6).
The United States Supreme Court in Zadvydas recognized that indefinite detention of aliens raises serious constitutional concerns, and 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. "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.
Upon the conclusion of the six (6) month period, if 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 (6) months. 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, 543 U.S. 371, 385 (2005), the Supreme Court extended the Zadvydas criteria to two Mariel Cubans who had been deemed inadmissible to the United States. Thus, Jado is entitled to protection under Zadvydas regardless of whether he is a removable or an inadmissible alien.
In response to Zadvydas, ICE adopted 8 C.F.R. § 241.4(k), which provides that prior to the expiration of the ninety (90) day removal period, the appropriate ICE district director shall conduct a custody review for aliens who cannot be removed during the prescribed period and make a determination as to whether the detainee should be released pending removal. When release is denied, the district director may retain responsibility for the alien up to three months or refer the alien to ICE's Headquarters Post-order Detention Unit (HQPDU).
Special review procedures apply following the transfer of an alien's case to the HQPDU. See 8 C.F.R. § 241.13. 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 with 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 ...