United States District Court, M.D. Pennsylvania
E. Jones III, Judge
Sawadogo (“Petitioner”), presently a detainee of
the United States Department of Homeland Security,
Immigration and Customs Enforcement (“ICE”),
incarcerated at the Pike County Correctional Facility,
Pennsylvania, filed the instant petition for writ of habeas
corpus pursuant to 28 U.S.C. §2241 on September 8, 2017.
(Doc. 1). Preliminary review of the petition has been
undertaken, see R. Governing § 2254 Cases R.
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 of Ivory Coast and a citizen of Burkina Faso who
entered the United States on or about February 5, 2017, as a
stowaway. (Doc. 1, p. 3). He was immediately taken into ICE
custody. (Id.) He indicates that he was denied
application for relief and determined to be admissible
pursuant to Section 212(a)(7)(A)(i)(I) of the Immigration and
Nationality Act. (Id.) He was ordered removed on
April 18, 2017. (Id.) He contends that to date, ICE
has been unable to remove him to Burkina Faso or any other
indicates that his custody status was reviewed on July 3,
2017 and that he was served with a written decision to
continuing his detention. (Id.) He is challenging
his continued mandatory detention. (Id.)
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
The removal period begins to run on the latest of the
(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 ...