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Mbengue v. Gartland

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

September 19, 2017

KHADIM MBENGUE, Petitioner,
v.
PATRICK GARTLAND, [1] Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Petitioner Khadim Mbengue (“Mbengue”), 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, as amended. (Docs. 1, 4.) Mbengue also filed a Motion to Proceed in Forma Pauperis. (Doc. 3.) As Mbengue has paid the filing fee, the Court DISMISSES as moot Mbengue's Motion. For the reasons which follow, I RECOMMEND that the Court DISMISS without prejudice Mbengue's Petition, (doc. 1), DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and CLOSE this case, and DENY Mbengue in forma pauperis status on appeal.

         BACKGROUND

         Mbengue, a native and citizen of Senegal, applied for admission to the United States on October 27, 2016, at the Port Elizabeth, Texas, port of entry by claiming a fear of returning to his country. (Doc. 1, p. 2.) After referral for a credible fear interview, an Asylum Pre-Screening Officer with the United States Citizenship and Immigration Services referred Mbengue's case to an Immigration Judge. (Id.) On December 8, 2017, the Immigration Judge ordered Mbengue removed to Senegal. (Id. at p. 14.) Mbengue did not file an appeal, and the removal order became administratively final. (Id.)

         However, Mbengue had not yet been removed to Senegal at the time he filed his Petition. ICE served Mbengue with a Warning for Failure to Depart, reminding him of his obligation to make timely applications for travel and identification documents. (Id. at p. 13.) Mbengue states ICE officials have been working with Senegalese officials to secure his travel documents for removal. (Doc. 4, p. 7.)

         Mbengue filed this Section 2241 action on August 8, 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 did not order service of Mbengue's Petition upon the Respondent, as the Court can make a fully formed decision based on Mbengue's filings.[2]

         DISCUSSION

         I. Dismissal of Mbengue'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). 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 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.

         Mbengue has satisfied the first prong of Akinwale (i.e., detention beyond the six-month removal period). His order of removal became administratively final on December 8, 2016. Thus, he had experienced more than six months of post-removal order detention at the time he filed his Section 2241 Petition. However, despite this showing, Mbengue 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. Mbengue has not argued, much less presented evidence, that any department of the United States has hindered his removal. Rather, in his Petition, he states in a conclusory fashion that there is no significant likelihood that his removal will occur in the reasonably foreseeable future. (Doc. 1, p. 5.)

         Mbengue's conclusory and generalized allegations regarding Senegal'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.”). Mbengue'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 Mbengue'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 since 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, Mbengue does not explain how the past lack of progress in the issuance of his travel documents means that Senegal 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 Mbengue has shown minimal bureaucratic delays in his removal proceedings, he has not demonstrated a significant unlikelihood of his removal in the reasonably foreseeable future. Furthermore, even if the Court were to accept Mbengue's speculation regarding Senegal's inaction on his proceedings, Mbengue also has presented argument that officials with ICE have been working with the Senegal government to secure his travel documents. (Doc. 4, p. 7.)

         Mbengue has failed to present any facts indicating that ICE is incapable of executing his removal order and that his detention will be of an indefinite nature. However, circumstances could eventually change in Mbengue's removal situation to the point that he could present a plausible claim for relief. Accordingly, the Court should DISMISS without prejudice Mbengue's Petition. Akinwale, 287 F.3d at 1052 (“Because circumstances may ultimately change in [petitioner's] situation, we affirm the dismissal without prejudicing ...


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