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ADU v. Gallagher

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

December 10, 2018

NDUDI BENSON ADU, Petitioner,
v.
PHIL BICKHAM, et al., [2] Respondents.

         28 U.S.C. § 2241

          ORDER AND REPORT & RECOMMENDATION

          STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE

         Presently pending before the Court is Petitioner's amended application for habeas corpus relief under 28 U.S.C. § 2241 (ECF No. 12) and motion to correct this case's caption (ECF No. 54), and Respondents' motion to dismiss Petitioner's application for habeas relief (ECF No. 30). For the reasons explained below, Petitioner's motion to correct the case caption is granted. It is recommended that his amended application for habeas relief be granted and Respondents' motion to dismiss be denied.

         BACKGROUND

         Petitioner is a native and citizen of Nigeria. Mot. to Dismiss 3, ECF No. 30. About five years ago, on November 18, 2013, he was detained by the Department of Homeland Security (“DHS”) as an “arriving alien” after attempting to enter the United States with an expired visa. Id. On November 25, 2013, DHS presented Petitioner with a Notice to Appear (“NTA”) which alleged he was removable under INA § 212(a)(7)(i)(I), 8 U.S.C. § 1182 (a)(7)(i)(I)-as an alien who did not possess a valid unexpired immigrant visa or other entry document when applying for admission to the United States. Id.

         Petitioner's first order of removal became final on December 23, 2014, after the Board of Immigration Appeals (“BIA”) denied his appeal of an Immigration Judge's (“IJ's”) removal order. Mot. to Dismiss Ex. D, ECF No. 30-1. Petitioner sought review of the BIA's decision in the U.S. Court of Appeals for the Eleventh Circuit which remanded his administrative case on May 23, 2016. Mot. to Dismiss Ex. H[3]. On September 20, 2017, the Eleventh Circuit declared that Petitioner's first final removal order “no longer qualified” as such because the BIA had granted Petitioner's motion to reopen his administrative case. Mot. to Dismiss Ex. L.

         Meanwhile, an IJ ordered Petitioner removed-for the second time-on November 22, 2016. Mot. to Dismiss Ex. B. The BIA affirmed that ruling on May 17, 2017. Mot. to Dismiss Ex. C. Petitioner sought judicial review of this second final order and, in a September 20, 2017, order, the Eleventh Circuit stayed Petitioner's removal pending a decision on his substantive appeal. Mot. to Dismiss Ex L. As of September 27, 2018, the Eleventh Circuit had not issued a ruling on Petitioner's pending appeals, and neither party has since informed the Court of such a ruling. See Resp'ts' Resp. to Suppl. Br. 6, ECF No. 57.

         Petitioner first applied for habeas relief in this Court on October 4, 2017 (ECF No. 1). After Respondents answered that initial application, Petitioner submitted an amended application for habeas relief (ECF No. 12). He then moved to transfer the case to the United States District Court for the Southern District of Georgia, because he was transferred to the Folkston Detention Center in Folkston, Georgia. Mot. to Transfer 1, 2, ECF No. 16. The case was transferred to the Southern District of Georgia on February 13, 2018. Order 1, ECF No. 17. On July 3, 2018, it was transferred back to this Court. (ECF No. 40.) This Court held a hearing on August 30, 2018, then gave both parties fourteen days to supplement the record and provide additional briefing. Text-Only Orders, August 30, 2018, ECF Nos. 51, 52.

         DISCUSSION

         I. Petitioner's Habeas Claim

         A. Legal Standard

         The parties agree that Petitioner is subject to a final order of removal. Resp'ts' Resp. to Suppl. Br. 1; Tr. Of Hr'g 13, ECF No. 53; see Pet'r's Opening Br. 8, ECF No. 24. Therefore, his detention is governed by section 241(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(a). That 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). Detention is mandatory during this initial ninety-day period. INA § 241(a)(2); 8 U.S.C. § 1231(a)(2). The statute allows that period to 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).

         Detention of an alien subject to an administratively final order of deportation/removal is authorized only for a period “reasonably necessary” to effectuate the removal. Zadvydas v. Davis, 533 U.S. 678, 699-700 (2001). In Zadvydas, the Supreme Court determined it was “practically necessary . . . for the sake of uniform administration in the federal courts” to establish a “presumptively reasonable period of detention.” Id. at 701. The Court, believing “that Congress previously doubted the constitutionality of detention for more than six months[, ]” set six-months as the outer boundary of that presumptively reasonable period. Id. Detention lasting longer than six months loses the presumption. Id. (“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 the “reasonably foreseeable future” is an inverse one. Id. (“[F]or detention to remain reasonable, as the period of prior post[-]removal confinement grows, what counts as the reasonably foreseeable future conversely would have to shrink.”).

         The Eleventh Circuit interprets Zadvydas as requiring an alien to show: “(1) that the six-month period, which commences at the beginning of the statutory removal period, has expired when the § 2241 petition is filed; and (2) evidence of a good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.” Gozo v. Napolitano, 309 Fed.Appx. 344, 346 (11th Cir. 2009); see also Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002) (“[I]n order to state a claim under Zadvydas the alien . . . must show post-removal detention in excess of ...


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