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Hamid v. Gartland

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

August 28, 2017

ABUBAKAR DAN HAMID, Petitioner,
v.
PATRICK GARTLAND, [1] Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Petitioner Abubakar Dan Hamid (“Hamid”), 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. 8.) Hamid filed a Reply, as well as other pleadings. (Docs. 9, 11, 12.) For the reasons which follow, I RECOMMEND that the Court DISMISS WITHOUT PREJUDICE Hamid's Petition, (doc. 1), DENY Hamid's Motions to Grant Petition, (docs. 9, 12), DIRECT the Clerk of Court to CLOSE this case, and DENY Hamid in forma pauperis status on appeal.

         BACKGROUND

         Hamid, a native and citizen of Ghana, applied for admission to the United States on April 30, 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 Hamid's case to an Immigration Judge. (Id. at 2.) On November 2, 2016, the Immigration Judge ordered Hamid removed to Ghana. (Id.) He did not appeal the Immigration Judge's decision.

         However, Hamid has not yet been removed to Ghana. On November 8, 2016, ICE mailed a request to the Embassy of Ghana for issuance of travel documents, but Ghana has yet to issue those documents. (Id.) Accordingly, ICE conducted reviews of Hamid's custody conditions on January 17, 2017, and May 1, 2017. (Id.) During both of those reviews, ICE found that Hamid's removal was likely in the reasonably foreseeable future, and thus, decided to continue Hamid's detention. (Id.) On May 23, 2017, ICE Removal and International Operations (“RIO”), a division of Enforcement and Removal Operations at ICE Headquarters which assists the local field offices in obtaining travel documents, advised the Miami Field Office that the Embassy of Ghana would soon be conducting telephonic interviews with a large number of detainees. (Id.) On May 31, 2017, RIO informed the Miami Field Office that the Embassy of Ghana intended to complete a list of individuals to be interviewed by the end of June of 2017. (Id.)

         Hamid filed this Section 2241 action on May 16, 2017. (Doc. 1.) Therein, he argues that he should be released pursuant to the ruling in Zadvydas v. Davis, 533 U.S. 678 (2001), and his constitutional rights. Hamid contends that he will not likely be removed to Ghana in the reasonably foreseeable future because he “cooperated with ICE's efforts to get the travel documents but, Ghana is not in a shape that it can accept people deported from other counties and the embassy didn't issue any travel documents so far.” (Doc. 1, p. 3.) On May 16, 2017, the Court ordered the United States Marshal to serve the originally named Respondents with a copy of the Petition and to respond to the Petition within twenty days of service. (Doc. 2.) The Marshal served Respondent on May 25, 2017, (doc. 3), and Respondent filed his Response, through counsel, on June 8, 2017.[2]

         DISCUSSION

         I. Dismissal of Hamid'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.

         Hamid has satisfied the first prong of Akinwale (i.e., detention beyond the six-month removal period). His final order of removal was issued on November 2, 2016, and he did not appeal. Thus, the six-month mark passed on May 2, 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. Hamid has not argued, much less presented evidence, that any department of the United States has hindered his removal. Rather, in his Petition, he makes conclusory arguments that he “cooperated with ICE's efforts to get the travel documents but, Ghana is not in a shape that it can accept people deported from other counties and the embassy didn't issue any travel documents so far.” (Doc. 1, p. 3.)

         Hamid'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.”). Hamid'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 of the record are wholly incredible.'”)).

         Equally unavailing is Hamid's argument that the Court can somehow presume that he will not be removed in the reasonably foreseeable future because he was not removed within 180 days of the removal order. Under Hamid's line of reasoning, the Court must grant relief any time a petitioner is held for longer than six months after a removal order. This would render the second prong of Akinwale meaningless and contradict the holding of Zadvydas. Furthermore, Hamid does not explain how the past lack of progress in the issuance of his travel documents means that Ghana will not produce the documents in the foreseeable future. See Fahim, 227 F.Supp.2d at 1366 (“The lack of visible progress since the INS requested travel documents from the Egyptian government does not in and of itself meet [petitioner's] burden of showing that there is no significant likelihood of removal. ‘[I]t simply shows that the bureaucratic gears of the INS are slowly grinding away.' [Khan v. Fasano, 194 F.Supp.2d 1134, 1137 (S.D. Cal. 2001).] In other words, the mere fact that the Egyptian government has taken its time in responding to the INS request for travel documents does not mean that it will not do so in the future.”). While Hamid has shown bureaucratic delays in his removal proceedings, he has not demonstrated a significant unlikelihood of his removal in the reasonably foreseeable future.

         Furthermore, even if the Court were to accept Hamid's speculation regarding Ghana's inaction on his proceedings, Respondent has rebutted that showing. Respondent has presented evidence that the Ghana Embassy has responded in some measure to ICE's request for travel documents. (Doc. 8-1, p. 2.) The Ghana Embassy advised ICE that it was scheduling telephonic interviews with a large number of detainees in late June of 2017. (Id.) This contradicts Hamid's claims that Ghana refuses to take any action on ICE's removal requests. Additionally, Respondent has produced an affidavit ...


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