United States District Court, M.D. Georgia, Columbus Division
U.S.C. § 2241
ORDER AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE.
pending before the Court are Petitioner's application for
habeas corpus relief (ECF No. 1) and motions seeking
appointed counsel (ECF No. 2), a protective order (ECF No.
6), and expedited review of his case (ECF No. 15). For the
reasons explained below, Petitioner's motions are denied
and it is recommended that his application for habeas corpus
relief be dismissed.
is a native and citizen of El Salvador who has been in the
custody of U.S. Immigration and Customs Enforcement
(“ICE”) since July 2015. Pet. 4, ECF No. 1. He
first encountered U.S. law enforcement on July 16, 2015, when
he was stopped by U.S. Border Patrol near the border between
the U.S. and Mexico. Resp'ts' Resp. to Pet. 1, ECF
No. 10. Petitioner was classified as a non-citizen who did
not have a right to be in or remain in the U.S, and was
detained on July 18, 2015, as “an alien present in the
[U.S.] who has not been admitted or paroled.”
Id. at 1-2; 8 U.S.C. § 1182(a)(7)(A)(i)(I); 8
U.S.C. § 1226(a)(1).
first appeared before an immigration judge (“IJ”)
on October 5, 2015, in Lumpkin, GA. Id. at 2. Two
days later, Petitioner appeared for a bond hearing where his
request for a change in custody status was denied.
Id. An IJ denied Petitioner's second request for
a change in custody status on August 4, 2016. Id.
The next day, Petitioner appeared before an IJ for a merits
hearing; on August 29, 2016, the IJ issued a written decision
denying Petitioner relief and ordering him removed to El
appealed the IJ's decision to the Board of Immigration
Appeals (“BIA”). On February 2, 2017, the BIA
dismissed his appeal. Id. at 2-3. However, in April
2017, the BIA granted Petitioner's motion to stay his
removal pending their decision on his motion for reopening or
reconsideration. Id. at 3. On May 26, 2017,
Petitioner appeared for another custody hearing, but his
request for a change in custody was again denied.
Id. As of October 10, 2017, the BIA had not ruled on
Petitioner's motion for reopening or reconsideration of
his administrative case. Resp'ts' Resp. to Mot. to
Expedite 2, ECF No. 18.
filed his application for habeas relief with this Court on
April 17, 2017. (ECF No. 1.) In their response, Respondents
argue Petitioner's detention is authorized under 8 U.S.C.
§ 1231(a)(1)(B)(ii) because he is an alien subject to an
administratively final removal order, and he has failed to
make a successful claim for relief under Zadvydas
v. Davis, 533 U.S. 678, 689 (2001). Resp'ts'
Resp. to Pet. 3, 5. The Court addresses the merits of
Petitioner's application before considering
Petitioner's subsequent motions.
Petition for Writ of Habeas Corpus
Post Final Order Detention
is an alien who is subject to an administratively final order
of removal. Petitioner has unsuccessfully appealed the
IJ's removal order against him thus that order is
administratively final. Resp'ts' Resp. to Pet. 2-3. A
removal order issued against an alien “becomes final
when the alien's appeal to the [BIA] is unsuccessful or
the alien declines to appeal to the [BIA].” Nken v.
Holder, 556 U.S. 418, 439, (2009) (Alito & Thomas,
JJ., dissenting) (citing 8 U.S.C. § 1101(a)(47)(B); 8
CFR §§ 1241.1, 1241.31.). Therefore,
Petitioner's detention pending removal from the United
States is governed by section 241(a) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. §
provision grants the Attorney General a ninety-day period to
effectuate an alien's removal from the United States
following the entry of a final order of deportation or
removal. INA § 241(a)(1)(A)-(B); 8 U.S.C. §
1231(a)(1)(A)-(B). Congress mandated detention of the alien
ordered removed during this initial ninety-day period. INA
§ 241(a)(2); 8 U.S.C. § 1231(a)(2). The removal
period may be extended “if the alien fails or refuses
to make timely application in good faith for travel or other
documents necessary to the alien's departure or conspires
or acts to prevent the alien's removal subject to an
order of removal.” 8 U.S.C. § 1231(a)(1)(C).
Zadvydas, the Supreme Court found that section
241(a) of the INA authorizes detention of an alien following
the entry of an administratively final order of
deportation/removal, but only for a period “reasonably
necessary” to effectuate the alien's
removal.Zadvydas, 533 U.S. 678, 699-700
(2001). The Court, recognizing the difficulty of balancing
the primacy of the Executive in foreign policy matters with
the inherent due process concerns of extensive detention,
established a six-month “presumptively
reasonable” period for clarity. Id. at 693-95,
700-02. Detention beyond that window may be deemed
unreasonable if a Petitioner shows he is unlikely to be
removed in the reasonably foreseeable future. Id. at
701 (“After this 6-month period, once the alien
provides good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future,
the Government must respond with evidence sufficient to rebut
that showing”). The relationship between the time of
confinement and what qualifies as a reasonable period of
detention is an inverse one. Id. (“[F]or