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Meskini v. Attorney General of United States

United States District Court, M.D. Georgia, Columbus Division

March 14, 2018




         Petitioner, a criminal alien who is subject to a final order of removal, seeks to be released from Respondents' custody because he believes that Respondents have detained him too long without removing him. The circumstances, of course, are more complicated than that, and a thorough review of those circumstances reveals that there is a significant likelihood that Petitioner will be removed in the reasonably foreseeable future. Accordingly, his second amended petition for writ of habeas corpus (ECF No. 63) is denied.


         I. Pre-Final Order of Removal Events

         Petitioner is a native of Algeria. He entered the United States without admission or inspection in January 1995. On January 23, 2004, he pleaded guilty to the following serious federal felonies in the United States District Court for the Southern District of New York: conspiracy to provide material support to terrorists; conspiracy to commit identification document fraud; transfer and attempted transfer of false identification documents; transfer and use of means of identification of other persons; trafficking in unauthorized access devices; effecting and attempting to effect transactions with unauthorized access devices; bank fraud; and possession of a firearm by an illegal alien. Order on Revocation of Supervised Release 1-2, United States v. Meskini, No. 1:00-CR-15 (S.D.N.Y. Oct. 27, 2010), ECF No. 58-6 on 4:14-CV-42 (M.D. Ga.). Petitioner was sentenced to seventy-two months of imprisonment, to be followed by five years of supervised release. Id. at 2. After he served his prison sentence, Petitioner settled in the Atlanta, Georgia area.

         On November 10, 2009, the Immigration and Customs Enforcement Agency of the United States Department of Homeland Security (“ICE”) took Petitioner into custody and served him with notice of its intent to seek his removal from the United States to Algeria based on his convictions for “aggravated felonies, ” as defined by the Immigration and Nationality Act. Ray Decl. ¶ 6, ECF No. 58-12; see also Notice of Intent to Issue Final Order of Removal (“Notice of Intent”), ECF No. 58-7. Petitioner did not contest the grounds for removal, but he did request withholding or deferral of his removal under the Convention Against Torture (“CAT”), stating that he feared torture in Algeria and Morocco. Notice of Intent 2. An immigration judge (“IJ”) then issued a final order of removal ordering Petitioner's removal to his native country, Algeria. Order of Removal (Nov. 25, 2009), ECF No. 58-8. Consistent with applicable law, Petitioner was interviewed by an asylum officer regarding his request for withholding and/or deferral of removal under the CAT, and on March 3, 2010, the asylum officer, finding Petitioner had a reasonable fear of torture in Algeria, referred Petitioner's case to an IJ. Notice of Referral to IJ, ECF No. 58-3.

         Shortly after the case was referred to an IJ, the United States Probation Office for the Southern District of New York filed a petition to revoke Petitioner's supervised release that was imposed as part of his sentence for the prior criminal convictions. Ray Decl. ¶ 9. The United States Marshal took Petitioner into custody for the alleged supervised release violations on March 24, 2010, and the immigration proceedings were administratively closed. Id. ¶ 10. Petitioner's supervised release was revoked, and he served a prison sentence for his violations. Id. ¶ 11; see also generally Order on Revocation of Supervised Release, United States v. Meskini, No. 1:00-CR-15 (S.D.N.Y. Oct. 27, 2010), ECF No. 58-6 on 4:14-CV-42 (M.D. Ga.). When Petitioner completed that sentence, ICE took him back into its administrative custody on June 22, 2012 so that his removal could proceed. Ray Decl. ¶ 13. On August 8, 2012, the IJ reopened proceedings for Petitioner's request for withholding and/or deferral under the CAT. Order Reopening Pet'r's CAT Req., ECF No. 58-13.

         At his individual hearing with the IJ on March 12, 2014, Petitioner consented to removal to Morocco despite his previous request under the CAT for withholding and/or deferral to that country. Order on Pet'r's CAT Req. 37-38, ECF No. 58-15. On June 13, 2013, the IJ issued an order declining to defer Petitioner's removal to Algeria and granting Petitioner's request that he be removed to Morocco. Id. at 39. Thus, Petitioner was ordered removed to Morocco. The IJ's order created confusion because it resulted in two conflicting removal orders-one to Morocco and the previous one to Algeria. The IJ subsequently reconsidered her order at the request of the Department of Homeland Security (“DHS”) and issued an amended order on June 24, 2013 that ordered Petitioner removed to Algeria, granted his application under the CAT for deferral of removal to Algeria, and again ordered Petitioner removed to Morocco. Am. Order on Pet'r's CAT Req. 39, ECF No. 58-14. DHS appealed the deferral of his removal to Algeria to the Bureau of Immigration Appeals (“BIA”). The BIA affirmed the IJ's decision to defer Petitioner's removal to Algeria. BIA Order Dismissing DHS Appeal 4 (Dec. 19, 2013), ECF No. 58-17. But the BIA vacated the IJ's alternative order directing that Petitioner be removed to Morocco, finding that this part of the order was beyond the scope of the IJ's authority, which in these proceedings was restricted to the issue of whether removal should be withheld or deferred. Id. at 4-5. The BIA thus preserved DHS's authority to remove Petitioner to an alternative country.

         On remand from the BIA on January 13, 2014, the IJ again deferred Petitioner's removal to Algeria under the CAT. Remand Order on Pet'r's CAT Req., ECF No. 58-18. Neither party appealed that order. Thus, Petitioner was subject to a final order of removal as of February 13, 2014.

         II. Post-Final Order of Removal Events

         As of today, Petitioner still has not been removed, and he is presently in administrative detention pending removal. Respondents contend that after the order of removal became final and they no longer had the option of trying to remove Petitioner to his native country of Algeria, they worked diligently to remove Petitioner to Morocco, Petitioner's country of choice. But Petitioner acknowledges the difficulties with such removal and, in fact, argues that he is not likely to be removed to Morocco in the reasonably foreseeable future.

         On January 3, 2017, while his habeas petition was pending in this Court, Petitioner was transferred from ICE administrative custody to the custody of the Federal Bureau of Investigation pursuant to an indictment that had been returned in 2013 in the United States District Court for the Northern District of Georgia. Bretz Decl. ¶ 5, ECF No. 95-2. That indictment charged Petitioner with unlawful possession of a firearm between fall of 2007 and winter of 2008. Indictment, United States v. Beltran, No. 1:13-CR-2 (N.D.Ga. Jan. 3, 2013), ECF NO. 95-1 on 4:14-CV-42 (M.D. Ga.).[1] Petitioner pleaded guilty to the charge in the indictment on September 18, 2017 and was sentenced to twelve months imprisonment, with credit for time served, on January 5, 2018. Order Taking Judicial Notice, ECF No. 137; Clinton Decl. ¶ 6, ECF No. 146-1.

         Respondents have presented evidence that while Petitioner was in United States Marshals Service custody for the criminal charge, they continued to prepare for his removal upon his return to ICE custody. During that interim, the IJ terminated the deferral of Petitioner's removal to Algeria, and the BIA subsequently dismissed Petitioner's appeal of that order. IJ Order Terminating Pet'r's Deferral of Removal 50 (June 13, 2013), ECF No. 131-1; BIA Order Dismissing Pet'r's Appeal (Nov. 22, 2017), ECF No. 144.

         Petitioner was returned to ICE custody on January 10, 2018 so that he could finally be removed. Clinton Decl. ¶ 6. Since Petitioner's return to ICE custody, Respondents have taken steps to accomplish his removal to Algeria. According to sworn affidavits, officials with ICE Enforcement and Removal Operations have provided the Algerian Consulate with copies of Petitioner's identity documents. Id. ¶ 8; Bernacke Decl. ¶ 6, ECF No. 149-1. The Algerian Consulate has replied, requesting Petitioner's fingerprints and photographs. Bernacke Decl. ¶ 8. And the Algerian Consulate has conducted a telephone interview of Petitioner. Id. ¶ 7; Clinton Decl. ¶ 8. Respondents have also requested the assistance of the United States Department of State to engage with senior officials of the Algerian government to request the issuance of Algerian travel documents for Petitioner. Harris Decl. ¶ 3, ECF No. 149-2. Respondents have engaged Algerian officials on multiple and regular occasions since January 2018 in preparation for Petitioner's repatriation. Id. ¶ 4; Clinton Decl. ¶ 8; Bernacke Decl. ¶¶ 7-8. According to ICE officials, they have received no indication from the Algerian government ...

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