United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
Tedros Afrhom Meskel (“Meskel”), who was
previously 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.) For the reasons which follow,
I RECOMMEND that the Court DISMISS
WITHOUT PREJUDICE Meskel's Petition, (doc. 1),
DIRECT the Clerk of Court to
CLOSE this case, and DENY
Meskel in forma pauperis status on appeal.
a native and citizen of Eritrea, applied for admission to the
United States on April 29, 2016, at the Port Hidalgo, Texas,
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
Meskel's case to an Immigration Judge. (Id.) On
August 31, 2016, the Immigration Judge ordered Meskel removed
to Eritrea or in the alternative to France because there was
a reason to believe that he had lawful immigration status in
France. (Id. at p. 2) Meskel did not file an appeal,
and the removal order became administratively final.
Meskel has not yet been removed to Eritrea or France. On
September 8, 2016, ICE mailed a request to the Embassy of
Eritrea for issuance of travel documents, but Eritrea has yet
to issue those documents. (Id.) On January 9, 2017,
ICE received additional information that Meskel may have
legal immigration status in France. (Id.) On April
26, 2017, ICE contacted the consulate of France in Miami,
Florida to verify Meskel's status in France. At the time
of the Response to the Show Cause Order, ICE was awaiting a
response from the Consulate of France and from the Embassy of
Eritrea. ICE Detention and Deportation Officer Haylean Berry
avers that ICE will schedule Meskel's removal as soon as
Eritrea or France issues his travel documents. (Id.)
conducted reviews of Meskel's custody conditions on
November 30, 2016 and February 24, 2017. (Id.) After
those reviews, ICE found that Meskel's removal was likely
in the reasonably foreseeable future, and thus, decided to
continue Meskel's detention. (Id.)
filed this Section 2241 action April 24, 2017. (Doc. 1.)
Therein, he requests that he be released from ICE custody
while his removal proceedings are pending. 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. 3.) The Marshal served Respondent on
May 24, 2017, (doc. 4), and Respondent filed his Response,
through counsel, on June 6, 2017, (doc. 8). Meskel filed
additional pleadings after the response, as well as a Notice
of Change of Address on July 7, 2017, following his transfer
to Broward Transition Center in Pompano Beach, Florida. (Doc.
Dismissal of Meskel'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 August 31, 2016.
Thus, the six-month mark passed on March 1, 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. Meskel has not argued,
much less presented evidence, that any department of the
United States has hindered his removal. Rather, in his
Petition, he generally states that he would not be a threat
to the community if he was released in the United States.
(Doc. 1, p. 7.)
conclusory and generalized allegations regarding Eritrea or
France'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.”).
Meskel'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.'”)).
unavailing is Meskel's argument in his Reply to
Respondent's Response, (doc. 10), that the Court should
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, Meskel does
not explain how the past lack of progress in the issuance of
his travel documents means that Eritrea 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