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Neway v. Gartland

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

August 28, 2017

ZELALEM MANGISTU NEWAY, Petitioner,
v.
PATRICK GARTLAND, [1] Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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.

         BACKGROUND

         Neway, 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. (Id.)

         However, 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.)

         ICE 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.

         Neway 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).

         DISCUSSION

         I. Dismissal of Neway'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 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.

         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.

         Neway 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.

         Neway's 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.'”)).

         Equally 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 ...


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