United States District Court, M.D. Pennsylvania
John E. Jones III Judge
Bello Amigo (“Amigo”), presently a detainee of
the United States Department of Homeland Security,
Immigration and Customs Enforcement (“ICE”),
incarcerated at the York County Prison, Pennsylvania, filed
the instant petition for writ of habeas corpus pursuant to 28
U.S.C. §2241 on June 22, 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. § 241.13.
is a Cuban National who entered the United States on April 1,
2008, at Miami, Florida. (Doc. 1, p. 7). He indicates that he
was taken into ICE custody on or about December 23, 2016 and
was ordered removed on January 26, 2017. (Id.) He
files the instant petition challenging his continued
“indefinite detention” without an “adequate
hearing.” (Id. at 6).
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, jurisdiction to make a
determination concerning his custody would now lie with the
HQPDU and there is no indication that Amigo submitted a
written request for release asserting the basis for his
belief that his detention is indefinite and there is no
significant likelihood that he will be removed in the
reasonably foreseeable future. 8 C.F.R. § 241.13(d)(1).