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Meskel v. Gartland

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

August 29, 2017

TEDROS AFRHOM MESKEL, Petitioner,
v.
PATRICK GARTLAND, [1] Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         BACKGROUND

         Meskel, 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. (Id.)

         However, 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.)

         ICE 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.)

         Meskel 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. 11.)

         DISCUSSION

         I. Dismissal of Meskel'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.

         Meskel 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.)

         Any 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.'”)).

         Equally 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 ...


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