IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
March 26, 2013
RICHARD CHARLES TAVARES,
THOMAS DECKER, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Martin C. Carlson United States Magistrate Judge
: : (Magistrate Judge Carlson)
REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
This case involves a habeas corpus petition filed by an immigration detainee and convicted drug trafficker, Richard Tavares. Tavares, a native and citizen of Jamaica, was admitted to the United States on or about September 13, 1992, as a Lawful Permanent Resident. (Doc. 9, Exs.) In 2006, Tavares was convicted of possession of marijuana with the intent to distribute in Philadelphia, Pennsylvania. (Id.) In Tavares' removal proceedings, the Immigration Judge found that this offense involved the distribution of some 266 grams of marijuana. (Id.)
Following this conviction, on January 31, 2012, the United States Immigration and Customs Enforcement (ICE), commenced administrative removal proceedings against Tavares who was believed to be subject to removal from the United States. (Id., Ex. B, Notice to Appear.) As part of these proceedings, immigration officials placed Tavares on notice that his removal was sought under "[S]section 237(a)(2)(B)(i) of the Immigration and Nationality Act, as amended, in that, at any time after admission, you have been convicted of a violation or (conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 802), other than a single offense involving possession for one's own use of 30 grams or less of marijuana." (Id.) Tavares was served with the Notice on February 15, 2012. (Id.)
On March 2, 2012, additional charges were lodged against Tavares "pursuant to the following provision(s) of law: "[S]section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, as amended, in that, at any time after admission, you have been convicted of an aggravated felony at defined in section 101(a)(43)(B) of the Act." (Id., Ex. C, Additional Charges of Inadmissibility/Deportability)
On June 14, 2012, an Immigration Judge ordered Tavares removed to Jamaica, (Id., Ex. D, Order of the Immigration Judge), finding that "the Government met its burden of proof by clear and convincing evidence." (Id., Ex. E, Oral Decision of the Immigration Judge.) Tavares challenged this ruling, but on October 12, 2012, the Board of Immigration Appeals affirmed the Immigration Judge's decision and dismissed Tavares's appeal of the order of removal. (Id., Ex. F, Decision of the Board of Immigration Appeals.) With the entry of this ruling Tavares' removal order became administratively final.
Tavares remains in immigration custody pending removal. As part of this custody, on December 26, 2012, Tavares's custody status was reviewed and it was determined that he would not be released from ICE custody. (Id., Ex. G, Decision to Continue Detention.) During this review, it was noted that travel documents were expected to be issued in the foreseeable future by the Jamaican Consulate. (Id.) Additionally, his criminal history indicated that he "could be a danger to the community." (Id. Ex. H, Criminal Complaint and Court Summary.) Tavares was informed that if he was not released or removed by April 12, 2013, that Headquarters Case Management Unit in Washington DC would make the final determination concerning his custody. (Id.)
C. Tavares' Habeas Petition
Displeased by the fact of this continuing detention, Tavares filed this pro se petition for a writ of habeas corpus on January 4, 2013. (Doc. 1.) This petition broadly challenges on statutory and constitutional grounds the ability of immigration officials to continue to hold Tavares while he completes the litigation of this removal case. The Government has filed a response to this petition (Doc. 9.), and Tavares has filed a traverse in support of his petition, (Doc. 10.). Thus, this matter is now ripe for resolution.
Because the period of detention experienced by Tavares during his removal proceedings is expressly required by statute and does not offend constitutional due process principles, we recommend that the court deny Tavares' petition at this time without prejudice to renewal of this claim, if warranted, at an appropriate future time.
In this petition, a convicted drug trafficker seeks to challenge his detention by immigration officials as excessive and unreasonable. It appears that the petitioner believes that this case solely involves post-removal detention under the mandatory detention provisions of 8 U.S.C. § 1226(c)(1)(B); and that his continued detention offends constitutional due process considerations.
We view this petition in a fashion that is more legally complex, subtle and nuanced. First, in our view the petitioner errs when he suggests that this case is simply about excessive post-removal detention. Quite the contrary, this case involved both pre- and post-removal periods of detention, although the petitioner's pre-removal detention came to a close in October 2012, with the entry of an administratively final removal order in this case. Thus, the petitioner simply does not appear to be subject to pre-removal detention at this time.
Rather, with the entry of a final order of removal against the petitioner, we believe that this case implicates two different, but important, sets of statutory safeguards and constitutional protections. First, we must determine whether the duration of petitioner's initial detention pending the entry of a final removal order offended due process in a way that now colors the legitimacy of his current post-removal detention. In addition, now that a final removal order has been entered in this case, we must also assess whether the continued detention of petitioner following the entry of this removal order violates a different, and more stringent, set of statutory and constitutional constraints.
B. Tavares' Detention Pending Entry of A Removal Order Was
Compelled By Statute and Did Not Violate Due Process
At the outset, we will examine the period of pre-removal detention experienced by the petitioner, carefully scrutinizing that period of detention to ensure both that it was legally appropriate, and that it was not so excessive as to violate the petitioner's due process rights.
In assessing this initial detention period, we begin by noting two things: First, this pre-removal detention has now ended since he is subject to an administratively final removal order at this time. Therefore, the petitioner's complaints regarding this period of detention are in some respects moot. Second, to the extent that the petitioner complains about the duration of this pre-removal detention period, this detention was specifically compelled by statute. Section 1226 of Title, 8, United States Code, directs the Attorney General to detain criminal aliens pending removal, stating in clear and precise terms as follows:
( c ) Detention of Criminal Aliens--(1) Custody.--The Attorney General shall take into custody any alien who.--. . .
(B) is deportable by reason of having committed any offense covered in section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D).
8 U.S.C. § 1226(c)(1)(B)(emphasis added).
In enacting this mandatory detention requirement for a sub-class of criminal aliens awaiting removal from the United States, Congress was responding to specific, compelling immigration concerns caused by the failure to timely deport aliens who had used the liberties conferred by this nation as a license to commit crimes. As the Supreme Court has noted:
Congress adopted this provision against a backdrop of wholesale failure by the INS to deal with increasing rates of criminal activity by aliens. See, e.g., Criminal Aliens in the United States: Hearings before the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs, 103d Cong., 1st Sess. (1993); S.Rep. No. 104-48, p. 1 (1995) (hereinafter S. Rep. 104-48) (confinement of criminal aliens alone cost $724 million in 1990). Criminal aliens were the fastest growing segment of the federal prison population, already constituting roughly 25% of all federal prisoners, and they formed a rapidly rising share of state prison populations as well. Id., at 6-9. Congress' investigations showed, however, that the INS could not even identify most deportable aliens, much less locate them and remove them from the country. Id., at 1. One study showed that, at the then-current rate of deportation, it would take 23 years to remove every criminal alien already subject to deportation. Id., at 5. Making matters worse, criminal aliens who were deported swiftly reentered the country illegally in great numbers. Id, at 3.The INS' near-total inability to remove deportable criminal aliens imposed more than a monetary cost on the Nation. First, as Congress explained, "[a]liens who enter or remain in the United States in violation of our law are effectively taking immigration opportunities that might otherwise be extended to others." S.Rep. No. 104-249, p. 7 (1996). Second, deportable criminal aliens who remained in the United States often committed more crimes before being removed.
Demore v. Kim, 538 U.S. 510, 518 (2003).
Recognizing these concerns, Congress mandated the detention of all criminal aliens, like the petitioner, who are convicted of aggravated felonies pending completion of removal hearings. In this case, there can be no doubt that the petitioner falls within the narrow class of criminal aliens who fall within the mandatory detention provisions of 8 U.S.C. § 1226(c)(1)(B). The petitioner's prior drug trafficking conviction brings him within the ambit of this statute. Therefore, by statute, he was subject to mandatory detention pending the entry of a removal order in these proceedings.
Having determined as a matter of statutory construction that the petitioner was legally subject to this mandatory detention, we further conclude that the petitioner cannot sustain a constitutional due process challenge to this mandatory detention on the facts of this case. At the outset, to the extent that the petitioner seeks to challenge the fact of his detention on due process grounds, that avenue of attack is now foreclosed by the United States Supreme Court's decision in Demore v. Kim, 538 U.S. 510 (2003). In Demore, the court addressed the issue of whether §1226 (c)(1)(B)'s mandatory detention provision violates due process. In terms that are equally applicable here, the court held that Congress acted within its broad authority to regulate immigration matters when it imposed mandatory detention on this narrow group of criminal aliens facing removal from the United States. As the court observed:
In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens." Mathews v. Diaz, 426 U.S. 67, 79-80, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) . . . . And, since Mathews, this court has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens. See, e.g., Zadvydas, 533 U.S., at 718, 121 S.Ct. 2491 (KENNEDY, J., dissenting) ("The liberty rights of the aliens before us here are subject to limitations and conditions not applicable to citizens"); Reno v. Flores, 507 U.S. 292, 305-306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ("Thus, 'in the exercise of its broad power over immigration and naturalization, "Congress regularly makes rules that would be unacceptable if applied to citizens" ' " ) (quoting Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977), in turn quoting Mathews, supra, at 79-80, 96 S.Ct. 1883));
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
Demore, 538 U.S. at 521-522.
Acknowledging the authority of Congress in this field, the court then held that: "Detention during removal proceedings is a constitutionally permissible part of that process." Demore, 538 U.S. at 531 (citations omitted). Yet, while reaching the conclusion that mandatory detention of certain criminal aliens did not violate due process, the court emphasized the very brief duration of most removal proceedings which rarely exceeded five months, id. at 530, and noted that the six-month delay experienced by the alien in that case was a product of his own actions which delayed the entry of a final removal order. Id. at 531, n. 15. Given the fixed and finite term of any pre-removal detention, the court held that the fact of this mandatory detention did not violate due process.
Following Demore courts have frequently rebuffed efforts by criminal aliens to broadly challenge their detention pending removal. See, e.g., Tavares v. Attorney General, 211 F. App'x 127 (3d Cir. 2007); Slebo v. District Director, No. 09-1335, 2009 WL 2151347 (M.D. Pa. July 17, 2009)(Munley, J.); Rodney v. Mukasey, No. 08-1386, 2009 WL 427171 (M.D. Pa. Feb. 20, 2009)(Muir, J.); Wright v. Bureau of Immigration and Customs Enforcement, No. 06-2278, 2007 WL 86263(M.D. Pa. Jan. 9, 2007)(Conner, J.). Yet these decisions rejecting broad due process challenges to pre-removal detention of criminal aliens do not wholly resolve this petition. In our view, consideration of the holding in Demore constitutes only the first part of our responsibility and analysis when reviewing claims like those presented here.
Demore holds that mandatory detention of certain criminal aliens pending removal proceedings does not, by itself, offend due process. However, the Demore court based this ruling upon its understanding of the short, fixed and finite term of any detention prior to removal. Thus, while Demore addressed the due process issues that arise from the fact that, for certain criminal aliens, detention pending removal is mandatory, courts still have an independent responsibility to assess whether the duration of any mandatory detention is so extended and unreasonable as to violate due process. See, e.g., Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005); Ly v. Hanson, 351 F.3d 263 (6th Cir. 2004); Prince v. Mukasey, 593 F. Supp.2d 727 (M.D. Pa. 2008); Alli v. Decker, No. 09-698, 2009 WL 2430882 (M.D. Pa. Aug. 10, 2009); Occelin v. District Director, No. 09-164, 2009 WL 1743742 (M.D. Pa. June 17, 2009).
While the contours of this constitutional protection against excessive detention pending removal hearings are still developing, several key benchmarks have emerged. First, in assessing these claims, we must look to the duration of the detention. Thus, in general, periods of detention which exceed one year may trigger substantial constitutional concerns, see, e.g., Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005)(2 years 8 months); Ly v. Hanson, 351 F.3d 263 (6th Cir. 2004)(500 days); Prince v. Mukasey, 593 F. Supp.2d 727 (M.D. Pa. 2008)(16 months); Alli v. Decker, No. 09-698, 2009 WL 2430882 (M.D. Pa. Aug. 10, 2009)(9 and 20 months); Occelin v. District Director, No. 09-164, 2009 WL 1743742 (M.D. Pa. June 17, 2009)(2 years), while pre-removal detentions spanning a shorter period of months present less substantial constitutional issues. See e.g., Demore, 538 U.S. at 531(6 months); Rodrigques v. Holder, No. 09-1764, 2010 WL 830929, *3 (M.D. Pa. March 4, 2010)(one year detention); Slebo v. District Director, No. 09-1335, 2009 WL 2151347 (M.D. Pa. July 17, 2009)(Munley, J.)(8 months); Rodney v. Mukasey, No. 08-1386, 2009 WL 427171 (M.D. Pa. Feb. 20, 2009)(Muir, J.)(18 months); Wright v. Bureau of Immigration and Customs Enforcement, No. 06-2278, 2007 WL 86263 (M.D. Pa. Jan. 9, 2007)(Conner, J.)(7 months).
Moreover, in weighing claims of excessive delay made by immigration detainees challenging mandatory pre-removal detention, courts must also carefully assess the reasons for the delay. Where the delay is attributable to actions taken by the alien in the course of litigating the removal proceedings, courts typically will not hold the government accountable for that delay when conducting a due process analysis. See, e.g., Demore, 538 U.S. at 531, n.15; Castellanos v. Holder, No. 08-4665, 2009 WL 2138408, at 5 (3d Cir. 2009); Prince v. Mukasey, 593 F. Supp. 2d 727 (M.D. Pa. 2008).
Finally, any consideration of an excessive delay claim brought by a criminal alien who is pending removal from the United States should take into account the fact that, upon entry of a final removal order, different statutory and due process protections come into play, protections designed to ensure that aliens who have been ordered removed are not held in custody for an unreasonable period of time. Thus, once a final order of removal is entered, the due process protections afforded to aliens by Zadvydas v. Davis, 533 U.S. 678 (2001) apply. See Matthias v. Hogan, No. 07-1987, 2008 WL 913522 (M.D. Pa. March 31, 2008). Under Zadvydas aliens subject to such final removal orders typically must either be removed, or be given bail consideration, within six months. The availability of this relief from excessive detention following the entry of a final removal order, coupled with what is frequently the brief duration of removal proceedings, greatly reduces any due process concerns resulting from the duration of the mandatory detention of aliens pending the completion of removal proceedings.
In this case, our review of these fundamental due process considerations leads us to conclude that the pre-removal delay experienced by the petitioner did not offend due process. With the entry of an administratively final removal order that period of pre-removal detention has ended. Therefore, the petitioner's complaints regarding this particular period of delay may now be moot. In any event, we note that the petitioner appeared to be precisely the type of criminal alien that Congress had in mind when it enacted this pre-removal detention provision into law: a criminal alien with a history of drug offenses. See Demore, 538 U.S. at 518.
Moreover, an assessment of the factors which govern our due process analysis of this pre-removal detention militates against the petitioner. At the outset, the duration of this pre-removal detention, approximately 9 1/2 months, falls within that range of cases where detention for a period of months has not inspired constitutional concerns. See, e.g., Demore, 538 U.S. at 531(6 months); Rodrigques v. Holder, No. 09-1764, 2010 WL 830929, *3 (M.D. Pa. March 4, 2010)(one year detention); Slebo v. District Director, No. 09-1335, 2009 WL 2151347 (M.D. Pa. July 17, 2009)(Munley, J.)(8 months);Rodney v. Mukasey, No. 08-1386, 2009 WL 427171 (M.D. Pa. Feb. 20, 2009)(Muir, J.)(18 months); Wright v. Bureau of Immigration and Customs Enforcement, No. 06-2278, 2007 WL 86263 (M.D. Pa. Jan. 9, 2007)(Conner, J.)(7 months).
Furthermore, the pre-removal detention in this case was attributable, in part, to litigation choices made by the petitioner in his removal proceedings. In such instances, where some delays are fairly attributed to the petitioner, the courts generally decline to consider due process claims by detained criminal aliens. See, e.g., Demore, 538 U.S. at 531, n.15; Castellanos v. Holder, No. 08-4665, 2009 WL 2138408, at 5 (3d Cir. 2009); Prince v. Mukasey, 593 F. Supp. 2d 727 (M.D. Pa. 2008).
Finally, this is a case in which the period of detention pending the entry of a removal order had a fixed and finite duration. Indeed, that period of pre-removal detention has concluded, since a final removal order has been entered for the petitioner. Therefore, this period of pre-removal detention, by itself, does not offend due process.
C. Tavares' Post-Removal Detention Does Not Yet Raise
In this case, Tavares' order of removal became final in October 2012. As an alien under a final order of removal, petitioner's detention is now governed by a set of statutory and constitutional rules.
First, by statute, aliens like the petitioner, who are subject to final removal orders, may be detained under 8 U.S.C. § 1231(a), which directs the Attorney General to remove such aliens within 90 days of the entry of a removal order. 8 U.S.C. § 1231(a)(1)(A). The statute then commands that "[d]uring the removal period the Attorney General shall detain the alien", 8 U.S.C. § 1231(a)(2), and with respect to criminal aliens like the petitioner specifically provides that: "Under no circumstance during the removal period shall the Attorney General release an alien who has been found ...deportable under section 1227(a)(2) ... of this title." 8 U.S.C. § 1231(a)(2). For purposes of our analysis of any post-final order period of detention, this statutory ninety-day "removal period" during which detention is mandatory begins on the date the order of removal becomes administratively final. See 8 U.S.C. § 1231(a)(1)(B)(i).
In this case, the petitioner has been held for approximately five months since his removal order became administratively final. Of this brief period of detention, the initial 90 days of detention were not only authorized by law, they were actually compelled by the statute. 8 U.S.C. § 1231(a)(2). As for the remaining, current, brief term of post-removal detention, nothing about this on-going detention presently violates the petitioner's constitutional rights.
For aliens awaiting removal, like the petitioner, the contours of those rights are now defined by the United States Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas, the United States Supreme Court extended due process protections to aliens awaiting removal from the United States, while generally sustaining the validity of the initial mandatory detention period for such aliens during the ninety-day removal period prescribed by 8 U.S.C. § 1231(a)(1)(A). Beyond this initial 90-day period the court concluded that: "we think it practically necessary to recognize some presumptively reasonable period of detention." Id. at 701.
The court then observed that:
While an argument can be made for confining any presumption to 90 days, we doubt that when Congress shortened the removal period to 90 days in 1996 it believed that all reasonably foreseeable removals could be accomplished in that time. We do have reason to believe, however, that Congress previously doubted the constitutionality of detention for more than six months . . . . Consequently, for the sake of uniform administration in the federal courts, we recognize that period. After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.
Id. at 701.
Taken together, 8 U.S.C. § 1231(a)(1)(A) and Zadvydas create a statutory and constitutional framework for protecting the rights of aliens who are detained pursuant to administratively final removal orders. Under this framework, such aliens shall be detained for the first 90 days of the removal period and further detention beyond this 90-day period will be presumed reasonable up to a period of 6 months, at which time aliens subject to final removal orders must either be removed, or be given bail consideration.
However, when calculating these detention periods for purposes of analyzing post-removal delay claims brought by immigration detainees two principles must be kept in mind. First, delays attributable to the recalcitrance of the immigration detainee, and his refusal to cooperate with immigration officials, are not to be considered by the courts in making these determinations regarding whether a detainee has experienced excessive delays in deportation. Thus, where an alien refuses to cooperate with the authorities in affecting his removal he cannot cite the delay in removal which he caused as grounds for habeas relied. As this court has observed:
[A]n "alien cannot assert a viable constitutional claim when his indefinite detention is due to his failure to cooperate with the INS's efforts to remove him." Pelich v. I.N.S., 329 F.3d 1057, 1061 (9th Cir.2003). In [such] a case, the court[s] determined that the continued detention of the alien was due to his own conduct: . . . Thus, the [court] has interpreted INA § 241(a)(1)(C) after Zadvydas to permit continued detention of a removable alien "so long as the alien fails to coopera8te fully and honestly with officials to obtain travel documents." Lema v. INS, 341 F.3d 853, 857 (9th Cir.2003). Similarly, district courts to consider this issue ask whether the petitioner has the "keys to his freedom," Pelich, 329 F.3d at 1060, to determine whether he is preventing his own removal pursuant to INA § 241(a)(1)(C). See, e.g., Clark v. Ashcroft, No. 03-3320, 2003 WL 22351953 at *3-4 (E.D.Pa. Sept. 16, 2003)(alien initially misrepresented his country of origin, but later gave his true name and identity; the government showed no evidence of non-cooperation since that time); Rajigah v. Conway, 268 F.Supp.2d 159, 165-66 (E.D.N.Y.2003) (finding no bad faith failure to cooperate where alien made truthful statements to Guyanese ambassador regarding his intent to file another court action, which the government considered failure to comply); Seretse-Khama v. Ashcroft, 215 F.Supp.2d 37, 51-53 (D.D.C.2002) (alien's truthful statements to Liberian officials that he did not wish to return to Liberia did not amount to bad faith failure to cooperate since it was not the reason for failure to issue travel documents; rather, it was their concern for his lack of ties to that country); Powell v. Ashcroft, 194 F.Supp.2d 209, 210 (E.D.N.Y.2002) (repeated inconsistencies regarding alien's identity "demonstrably hampered the INS in carrying out his removal"). Thus, this court must carefully examine the record to determine Petitioner's part in his continued detention.
Abdel-Muhti v. Ashcroft, 314 F.Supp.2d 418, 427-28 (M.D.Pa. 2004).
In addition, cases construing Zadvydas recognize that the presumptively reasonable six-month detention period described by the Supreme Court is just that--a presumptively reasonable period of detention. It is not an ironclad time frame within which aliens must be removed, or released. Moreover, echoing the Supreme Court's observation that "[t]his 6-month presumption, of course, does not mean that every alien not removed must be released after six months," id. at 701, courts have concluded that an alien who has been held longer than six months awaiting removal still bears an initial burden of proof to secure release pending removal. In such instances, "in order to state a claim under Zadvydas the alien not only must show post-removal order detention in excess of six months but also must provide evidence of a good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future." Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002). See, e.g., Rodney v. Mukasey, 340 F. App'x 761, 764 (3d Cir. 2009); Encarnacion-Mendez v. Attorney General, 176 F. App'x 251, 254 (3d Cir. 2006); Joseph v. United States, 127 F. App'x 79, 81 (3d Cir. 2005).
In instances where an alien is unable to produce evidence demonstrating good cause to believe that there is no significant likelihood of removal in the reasonably foreseeable future, courts have frequently sustained continuing periods of detention pending removal well beyond the six-month time frame described as presumptively reasonable by the Supreme Court in Zadvydas, reasoning consistent with Zadvydas that: "[t]his 6-month presumption, . . ., does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future." Zadvydas, 533 U.S. at 701. See, e.g., Joseph v. United States, 127 F. App'x 79 (3d Cir. 2005) (11 months); Sun v. Holder, No.10-2186, 2010 WL 5391279 (M.D. Pa. Dec. 22, 2010)(10 months); Joseph v. Lowe, No. 10-1222, 2010 WL 3835872 (M.D. Pa. Sept. 24, 2010) (10 months); Boyce v. Holder, 09-2254, 2010 WL 817482 (M.D. Pa. March 9, 2010)(18 months); Robinson v. District Director, No. 09-637, 2009 WL 3366439 (M.D. Pa. Oct. 19, 2009) (1 year);Brown v. Attorney General, No. 09-313, 2009 WL 2225431 (M.D. Pa. July 23, 2009) (10 months); Aishrat v. Mukasey, No. 08-786, 2008 WL 3071003 (M.D. Pa. Aug. 1, 2008) (10 months); Cyril v. Bureau of Immigration and Customs Enforcement, No. 05-2658, 2006 WL 1313857 (M.D. Pa. May 11, 2006) (10 months); Nma v. Ridge, 286 F.Supp.2d 469 (E.D.Pa. 2003)(11 months).
While this legal framework affords substantial protections to aliens who are subject to final removal orders, application of these legal standards to this case provides no grounds for affording habeas relief to the petitioner at this time. This removal order became final in October, 2012. Thereafter, the petitioner was subject to the first 90-day mandatory detention period set by statute, 8 U.S.C. § 1231(a)(2), and his post-removal detention falls well within the 6-month presumptively reasonable time frame defined by the Supreme Court in Zadvydas.
On these facts we find that the petitioner simply has not made a valid claim that he has been subjected to an unconstitutionally excessive period of post-removal delay. Indeed, far from being unconstitutionally excessive, the current post-removal detention falls within periods sanctioned by statute and by the Supreme Court. Therefore, this brief detention does not raise concerns of constitutional dimension warranting habeas relief at this time. See Hendricks v. Reno, 221 F. App'x 131 (3d Cir. 2007)(affirming denial of habeas petition where court found delay from date of administratively final deportation order was less than 3 months).
While we reach this view regarding the current lawfulness of the petitioner's detention, we also recognize the petitioner's concerns that removal may be difficult and time-consuming, and may result in substantial additional delay and detention. While we find that the petitioner has not presently carried his burden of proof under Zadvydas, justifying habeas corpus relief at this time, we remain mindful of the Supreme Court's admonition that "for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the 'reasonably foreseeable future' conversely would have to shrink". Zadvydas, 533 U.S. at 701. In this regard, this court's prior observation is particularly apt:
Of course, "for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the 'reasonably foreseeable future' conversely would have to shrink." Zadvydas, 533 U.S. at 701, 121 S.Ct. at 2505. Thus, if time passes with no progress on removal, [the petitioner] may file a new 2241 petition challenging his continued detention. We believe it would not be unreasonable for him to file another petition after four more months. Alternatively, he may file sooner if specific events occur indicating he would not be removed in the reasonably foreseeable future. We add, however, that we express no opinion on whether such a motion would succeed in either circumstance.
Aishrat v. Mukasey, No. 08-786, 2008 WL 3071003, *2 (M.D.Pa. Aug.1, 2008). Accordingly, immigration officials must remain alert to their legal responsibility to ensure the petitioner's prompt removal from the United States, and strive to expedite his return to his homeland. While we urge respondents to keep these requirements of the law in mind, at present, we find that this detention still falls within a presumptively reasonable time-frame, and the petitioner has not carried his burden of proving that he will not be removed in the foreseeable future. Therefore, the petitioner has not yet shown that his continued detention has become unreasonable in its duration, and this petition should be denied without prejudice to renewal of these claims at such time, if any, when the duration of this detention becomes unreasonably prolonged.
For the foregoing reasons, upon consideration of this Petition for Writ of Habeas Corpus, IT IS RECOMMENDED that the Petition be DENIED without prejudice to renewal at such time, if any, that the delay and detention may become unreasonable and excessive.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 5th day of March 2013.
Martin C. Carlson
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