United States District Court, M.D. Georgia, Columbus Division
D. LAND CHIEF U.S. DISTRICT COURT JUDGE
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.
Pre-Final Order of Removal Events
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.
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.
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
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
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.
Post-Final Order of Removal Events
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
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.). 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.
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.
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 ...