United States District Court, M.D. Pennsylvania
John E. Jones III Judge
Johnson (“Johnson”), presently a detainee of the
United States Immigration and Customs Enforcement
(“ICE”), incarcerated at the Pike County Prison,
Lords Valley, Pennsylvania, filed the instant petition for
writ of habeas corpus pursuant to 28 U.S.C. §2241 on May
2, 2017. (Doc. 1). Preliminary review of the petition has
been undertaken, see R. Governing § 2254 Cases
R. 4 and, for the reasons set forth below, the petition will
be referred to ICE as a request for review under 8 C.F.R.
is a native and citizen of Jamaica who indicates that he was
taken into ICE custody on October 28, 2016. (Doc. 1, p. 2).
He received a decision to continue detention after the
expiration of ninety days. (Id.) He alleges that his
“continued detention while awaiting [his] removal
violates 8 U.S.C. 1231(a)(6) due process to lack of a
significant likelihood of removal in the reasonable
foreseeable future as required by Zadvydas v. Davis,
533 U.S. 678….” (Doc. 1, p. 2). He filed the
instant petition seeking an order compelling his release.
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 days to remove an alien from
the United States after his order of removal, during which
time detention is mandatory. Section 1231(a)(1)(B) provides
removal period begins to run on the latest of the following:
(i) The date the order of removal becomes administratively
(ii) If the removal order is judicially reviewed and if the
court orders a stay of the removal of the alien, the date of
the court's final order.
(iii) If the alien is detained or confined (except under an
immigration process), the date the alien is released from
detention or confinement.
8 U.S.C. §1231. At the conclusion of the ninety-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). 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 v. Davis, 533 U.S. 678,
689 (2001). “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, a period of six months was recognized
as a “presumptively reasonable period of
detention.” Id. at 701.
Zadvydas, regulations were promulgated to meet the
criteria established by the Supreme Court. See 8
C.F.R. § 241.4. Prior to the expiration of the mandatory
ninety-day removal period, the district director shall
conduct a custody review for an alien where the alien's
removal cannot be accomplished during the prescribed period.
8 C.F.R. § 241.4(k)(1)(i). When release is denied
pending the removal, the district director may retain
responsibility for custody determinations for up to three
months, or refer the alien to the Headquarters Post Order
Detention Unit (“HQPDU”) for further custody
review. 8 C.F.R. § 241.4(k)(1)(ii). Once jurisdiction is
transferred, an eligible alien may submit a written request
for release to the HQPDU asserting the basis for the
alien's belief that there is no significant likelihood
that he will be removed in the reasonably foreseeable future.
8 C.F.R. § 241.13(d)(1).
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.”
Zadvydas, 533 U.S. at 701. Not every alien must be
released after six months. An alien may still be detained
beyond six months “until it has been determined that
there is no significant likelihood of removal in the
reasonably foreseeable future.” Id.
matter sub judice, the presumptively reasonable six
month period began running on October 28, 2016, the date
Johnson was taken into ICE custody. The six month period has
recently expired, and ICE has failed to remove Johnson.
Jurisdiction to make a determination concerning his custody
would now lie with the HQPDU. There is no indication that he
submitted a written request for release asserting the basis
for his belief that there is no significant likelihood that
he will be removed in the reasonably foreseeable future. ...