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Mohammed v. Gartland

United States District Court, S.D. Georgia, Waycross Division

August 28, 2017

SANI MOHAMMED, Petitioner,
v.
PATRICK GARTLAND, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Petitioner Sani Mohammed (“Mohammed”), who is currently in the physical custody of United States Immigration and Customs Enforcement (“ICE”) at the Folkston ICE Processing Center in this District, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) After the Court ordered service, Respondent filed a Response arguing that the Court should dismiss the Petition. (Doc. 13.) For the reasons which follow, I RECOMMEND that the Court DISMISS WITHOUT PREJUDICE Mohammed's Petition, (doc. 1), DIRECT the Clerk of Court to CLOSE this case, and DENY Mohammed in forma pauperis status on appeal.

         BACKGROUND

         Mohammed, a native and citizen of Ghana, applied for admission to the United States on May 6, 2016, at the San Ysidro, California, port of entry by claiming a fear of returning to his country. (Doc. 8-1, p. 1.) After referral for a credible fear interview, an Asylum Pre-Screening Officer with the United States Citizenship and Immigration Services referred Mohammed's case to an Immigration Judge. (Id. at 2.) On October 12, 2016, the Immigration Judge ordered Mohammed removed to Ghana. (Id.) Though Mohammed reserved his right to appeal, he did not file an appeal, so the removal order became administratively final when the deadline to file an appeal elapsed thirty (30) days later on November 13, 2016. (Id.)

         However, Mohammed has not yet been removed to Ghana. On November 14, 2016, ICE mailed a request to the Embassy of Ghana for issuance of travel documents, but Ghana has yet to issue those documents. (Id. at pp. 2-3.) Respondent states that the issuance of the travel documents was delayed due to presidential elections in Ghana. (Id.) Thus, ICE resubmitted the travel document request on January 5, 2017. (Id. at pp. 4-5.)

         ICE has taken other actions to facilitate Mohammed's removal. ICE conducted reviews of Mohammed's custody conditions on February 22, 2017, and May 22, 2017. (Id. at p. 4.) After those reviews, ICE found that Mohammed's removal was likely in the reasonably foreseeable future, and thus, decided to continue Mohammed's detention. (Id.) ICE has also issued several documents to Mohammed advising him of his responsibilities to assist ICE in the removal process, with which Respondent contends Mohammed has not fully complied. (Id. at pp. 3-4.)

         Prior to issuing a travel document to one of its nationals, Ghana requires the national to undergo a telephonic interview. (Id. at p. 3.) On July 31, 2017, the Embassy of Ghana notified ICE Removal and International Operations (“RIO”) that Mohammed would be interviewed in two weeks. (Id. at p. 4.) ICE Detention and Deportation Officer David Scarberry avers that Ghana will likely issue a travel document to Mohammed shortly after the interview, and his removal will be conducted shortly thereafter. (Id.)

         Mohammed filed this Section 2241 action on April 28, 2017, in the Northern District of Georgia. (Doc. 1.) Therein, he argues that he should be released pursuant to the ruling in Zadvydas v. Davis, 533 U.S. 678 (2001), and that his continued detention violates his constitutional rights. After the case was transferred to this Court, on July 18, 2017, the Court ordered the United States Marshal to serve the Respondent with a copy of the Petition and to respond to the Petition within twenty days of service. (Doc. 8.) The Marshal served Respondent on July 26, 2017, (doc. 10), and Respondent filed his Response, through counsel, on August 9, 2017, (doc. 13).

         DISCUSSION

         I. Dismissal of Mohammed's Section 2241 Petition

         Under the Immigration and Nationality Act, “when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.” 8 U.S.C. §1231(a)(1)(A). During that period, the Attorney General must detain the alien. 8 U.S.C. §1231(a)(2). However, any continued detention under that statute must not be indefinite. In Zadvydas, the United States Supreme Court held that indefinite detention of aliens raises serious constitutional concerns. 533 U.S. at 701. Thus, once an order of removal becomes final, ICE should make every effort to remove the alien within a reasonable time. Id. The Supreme Court found that six months is a presumptively reasonable period to detain a removable alien awaiting deportation. Id.

         However, this does not entail that every alien detained longer than six months must be released. Id. Rather, to state a claim for habeas relief under Zadvydas, an alien must (1) demonstrate that he has been detained for more than six months after a final order of removal; and (2) “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). If a petitioner makes these showings, the burden shifts to the Government to respond with evidence to rebut that showing. Zadvydas, 533 U.S. at 701.

         Mohammed has satisfied the first prong of Akinwale (i.e., detention beyond the six-month removal period). His order of removal became administratively final on November 13, 2016. Thus, the six-month mark passed on May 13, 2017. Nevertheless, he has failed to satisfy the second prong of Akinwale, He has not presented any evidence of a good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future. Akinwale, 287 F.3d at 1052. Mohammed has not argued, much less presented evidence, that any department of the United States has hindered his removal. Rather, in his Petition, he states that “Ghana is is [sic] not in the shape that can accept people deported from other countries and the embassy didn't issue his travel documents.” (Doc. 1, p. 4.)

         Mohammed's conclusory and generalized allegations regarding Ghana's intentions and practices are insufficient to state a claim that there is no significant likelihood of his removal in the reasonably foreseeable future. Fahim v. Ashcroft, 227 F.Supp.2d 1359, 1365 (N.D.Ga. 2002) (Egyptian petitioner's “bare allegations are insufficient to demonstrate a significant unlikelihood of his removal in the reasonably foreseeable future.”). Mohammed's wholly conclusory allegations lack any support in the record and do not require consideration by this Court, let alone entitle him to any relief. See Caderno v. United States, 256 F.3d 1213, 1217 (11th Cir. 2001) (vague, conclusory allegations in a Section 2255 motion insufficient to state basis for relief); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (quoting Stano v. Dugger, 901 F.2d 898, 899 (11th Cir. 1990) (petitioner not entitled to habeas relief “when his claims are merely ‘conclusory allegations unsupported by specifics' or ‘contentions that in the face ...


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