United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
Dawit Abraham Mehari (“Mehari”), 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.
12.) For the reasons which follow, I
RECOMMEND that the Court DISMISS
WITHOUT PREJUDICE Mehari's Petition, (doc. 1),
DIRECT the Clerk of Court to
CLOSE this case, and DENY
Mehari in forma pauperis status on appeal.
11, 2016, Mehari, a native and citizen of Eritrea, applied
for admission to the United States at the Hidalgo, Texas,
Port of Entry, by claiming a fear of returning to his
country. (Doc. 1, p. 6.) After referral for a credible fear
interview, an Asylum Pre-Screening Officer with the United
States Citizenship and Immigration Services referred
Mehari's case to an Immigration Judge. (Doc. 12-1, p. 1.)
On October 21, 2016, the Immigration Judge ordered Mehari
removed to Eritrea. (Doc. 1, p. 7.) Mehari did not file an
appeal, and the removal order became administratively final.
(Doc. 12-1, p. 2.)
Mehari has not yet been removed to Eritrea. On numerous
occasions, ICE served Mehari with a Warning for Failure to
Depart, reminding him of his obligation to make timely
applications for travel and identification documents.
(Id. at pp. 2-3.) Nevertheless, Mehari failed to
make any effort to obtain travel documents. (Id.) On
January 11, 2017, ICE mailed a request to the Embassy of
Eritrea for issuance of travel documents, but Eritrea has yet
to issue those documents. (Id. at pp. 2-3.) ICE
conducted reviews of Mehari's custody conditions on
January 12, 2017, and April 25, 2017. (Id. at p. 4.)
After those reviews, ICE found that Mehari's removal was
likely in the reasonable foreseeable future, and thus,
decided to continue Mehari's detention. (Id.) On
July 12, 2017, ICE Removal and International Operations, a
division of Enforcement and Removal Operations at ICE
Headquarters, advised that Mehari was set for a July 26,
2017, interview with the Eritrean Embassy regarding his
travel documents. (Id. at p. 3.) ICE Detention and
Deportation Officer Haylean Berry avers that ICE will
schedule Mehari's removal as soon as Eritrea issues his
travel documents. (Id. at p. 3.)
filed this Section 2241 action on May 8, 2017 in the Northern
District of Georgia. (Doc. 1.) Therein, he requests that he
be released from ICE custody while his removal proceedings
are pending. After the case was transferred to this Court, on
June 29, 2017, 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.
8.) The Marshal served Respondent on July 7, 2017, (doc. 10),
and Respondent filed his Response, through counsel, on July
20, 2017 (doc. 13).
Dismissal of Mehari'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).
Additionally, the Attorney General may detain certain
categories of aliens beyond the 90 day removal period. 8
U.S.C. § 1231(a)(6). However, any continued detention
under that statute must not be indefinite. See Zadvydas
v. Davis, 533 U.S. 678, 701 (2001) (construing 8 U.S.C.
§ 1231(a)(6) to contain a “reasonable time”
limitation in which the Attorney General may detain aliens
beyond the 90 day period). The United States Supreme Court
has found that six months is a presumptively reasonable
period to detain a removable alien awaiting deportation.
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 October 21, 2016.
Thus, the six-month mark passed on April 21, 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. Mehari 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. 4.)
conclusory and generalized allegations regarding
Eritrea'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.”).
Mehari'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 Mehari'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. (Doc. 1-2, pp. 2, 6-7.)
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, Mehari 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 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
Mehari has shown bureaucratic delays in his removal
proceedings, he has not demonstrated a significant
unlikelihood of his removal in the reasonably foreseeable
even if the Court were to accept Mehari's speculation
regarding Eritrea's inaction on his proceedings,
Respondent has rebutted that showing. The Government has
presented evidence that the Eritrean Embassy has responded in
some measure to ICE's request for travel documents. The
Eritrean Embassy advised ICE that it planned to interview
Mehari on July 26, 2017. (Doc. 12-1, p. 3.) Additionally,
Respondent has produced an affidavit from Officer Haylean