United States District Court, M.D. Georgia, Columbus Division
U.S.C. § 2241
REPORT AND RECOMMENDATION
Stephen Hyles United States Magistrate Judge
pending before the Court are Petitioner's application for
habeas corpus relief (ECF Nos. 1, 5, 20) and his motions
seeking an evidentiary hearing (ECF No. 55) and a decision in
this case (ECF No. 59). For the reasons explained below,
Petitioner's motions are denied and it is recommended
that his application for habeas relief be denied.
is a native and citizen of Venezuela. Am. Pet. 12, ECF No. 5.
He was first admitted into the United States (U.S.) on
January 13, 1982, via a Non-Immigrant F1 student Visa.
Id. at 14. His current detention by ICE began on
October 7, 2015. Id. Petitioner had a variety of
interactions with law enforcement between his first entry
into the U.S. and his current period of detention.
1997, Petitioner pled guilty to seven criminal charges in the
U.S. District Court for the Southern District of Florida.
Resp'ts' Opp'n. to Pet. 2, ECF No. 13. The
charges included “Failure to Report International
Transportation of Currency” and “Structuring
Deposits in Order to Avoid Filing Currency Transaction
Reports.” Id. Petitioner was sentenced to
seven concurrent 15 month imprisonments. Id. In
January 1999, Petitioner was ordered removed from the country
and he departed voluntarily in February of that year.
Id. at 3.
attempted to re-enter the U.S. in both May 1999 and August
2005. Id. Both times he was found
inadmissible and removed under Expedited Removal orders.
Id. On June 28, 2006, Petitioner was arrested and
detained by ICE after reentering the U.S. a third time. The
previous removal order against him was reinstated.
Id. Petitioner then pled guilty to one charge of
“Being Found in the U.S. After Deportation for an
Aggravated Felony” in the U.S. District Court for the
Middle District of Florida. In January 2007, he was removed
from the U.S. to Venezuela pursuant to an ICE-issued Warrant
of Removal. Id. at 4.
November 2014, Petitioner again encountered ICE agents in the
U.S. Petitioner was detained and held without bail per the
order of a U.S. Magistrate Judge in the Middle District of
Florida. Id. Petitioner pled guilty to one count of
“Being Found in the U.S. After Deportation for Felony
Offenses” and one count of “Unlawful Entry,
” and was given two consecutive eleven-month prison
sentences. Id. On October 7, 2015, ICE executed an
arrest warrant against Petitioner. Id. His current
detention and related immigration proceedings arise out of
the execution of that warrant.
asylum officer determined Petitioner presented a reasonable
fear of persecution and his case was referred to the
immigration court for review. Id. On February 9,
2016, Petitioner applied for Withholding of Removal and
protection under the Convention Against Torture (CAT). Am.
Compl. ¶ 34, ECF No. 20. His application was denied on
September 12, 2016, following an August 29, 2016, merits
hearing before an immigration judge (IJ). Am. Compl. ¶
30, 36, 37. Petitioner appealed that decision, and the Board
of Immigration Appeals (BIA) remanded the case to an IJ for
further inquiry. Pet'r's Resp. in Supp. of Am. Compl.
Ex. 2 at 5, ECF No. 37-2. Petitioner is currently awaiting
the continuation of the remanded immigration proceeding.
Meanwhile, he seeks habeas relief under both Zadvydas v.
Davis, 533 U.S. 678 (2001) and Sopo v. U.S. Attorney
General, 825 F.3d 1199 (11th Cir. 2016), arguing that he
is subject to a final order of removal and has been held in
detention for over six months with no reasonably foreseeable
removal or, alternatively, has not received an
administratively final removal order and is thus entitled to
seek immediate release or bond hearing.
seeks alternative relief under Zadvydas and
Sopo. Because the Court finds that Petitioner is
subject to a final order of removal, Sopo is
inapplicable. Thus, the following analysis focuses on
Petitioner's Zadvydas claim.
Detention Pending Removal
Petitioner may receive relief under Zadvydas only
after he is subject to a final order of removal. The parties
dispute whether Petitioner is subject to such an order. This
Court concludes that he is, as his prior final order of
removal has been reinstated.
detention pending removal from the United States is therefore
governed by section 241(a) of the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1231(a). This
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 statute
allows for the extension of this removal period “if the
alien fails or refuses to make timely application in good