United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE.
Zelalem Mangistu Neway (“Neway”), 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. 7.) For the reasons which follow,
I RECOMMEND that the Court DISMISS
WITHOUT PREJUDICE Neway's Petition, (doc. 1),
DIRECT the Clerk of Court to
CLOSE this case, and DENY
Neway in forma pauperis status on appeal.
a native and citizen of Ethiopia, applied for admission to
the United States on May 12, 2016, at the Hidalgo, Texas,
port of entry by claiming a fear of returning to his country.
(Doc. 7-1, p. 2.) After referral for a credible fear
interview, an Asylum Pre-Screening Officer with the United
States Citizenship and Immigration Services referred
Neway's case to an Immigration Judge. (Id.) On
September 28, 2016, the Immigration Judge ordered Neway
removed to Ethiopia. (Id.) Neway did not file an
appeal, and the removal order became administratively final.
Neway has not yet been removed to Ethiopia. On three
ocassions, ICE served Neway with a Warning for Failure to
Depart (“Form I-229(a)”), reminding him of his
obligation to make timely applications for travel and
identification documents. (Id. at pp. 2-3.) However,
Neway has not made any effort to obtain travel documents.
(Id.) On December 21, 20167, ICE mailed a request to
the Embassy of Ethiopia for issuance of travel documents and
resubmitted that request on March 21, 2017. (Id. at
p. 2.) The Embassy of Ethopia telephonically interviewed
Neway on April 6, 2017, and on June 7, 2017, the Embassy
indicated to ICE that Ethiopia is willing to issue travel
documents for Neway but requested additional documentation to
expedite the process. (Id. at p. 3.)
conducted reviews of Neway's custody conditions on
December 28, 2016, and March 31, 2017. (Id. at pp.
3-4.) After that review, ICE found that Neway's removal
was likely in the reasonably foreseeable future, and thus,
decided to continue Neway's detention. (Id.) ICE
has taken other actions to facilitate Neway's removal.
Pertinently, 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, planned to visit the
Embassy of Ethiopia during the week of June 11, 2017, and
discuss the request for Neway's travel documents.
filed this Section 2241 action on May 5, 2017. (Doc. 1.)
Therein, he argues that he should be released from custody
given the amount of time that has passed since the
Immigration Judge ordered his removal. The Court ordered the
United States Marshal to serve 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 May 31,
2017, (doc. 3), and Respondent filed his Response, through
counsel, on June 15, 2017, (doc. 7).
Dismissal of Neway's Section 2241 Petition
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 v. Davis, 533 U.S. 678
(2001), 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.
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.
has satisfied the first prong of Akinwale (i.e.,
detention beyond the six-month removal period). His order of
removal became administratively final on September 28, 2016.
Thus, the six-month mark passed on March 18, 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. Neway has not argued,
much less presented evidence, that any department of the
United States has hindered his removal. Rather, in his
Petition, he simply argues that he has been detained for more
than six months and that his removal appears indefinite.
conclusory and generalized allegations regarding
Ethiopia'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.”).
Neway's wholly conclusory allegation 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.'”)).
unavailing is Neway's implied 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 this 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, Neway does not
explain how the past lack of progress in the issuance of his
travel documents means that Ethiopia 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 ...