United States District Court, M.D. Georgia, Valdosta Division
U.S.C. § 2241
ORDER AND REPORT & RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
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.
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.
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. 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.
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.
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.
Petitioner's Habeas Claim
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.
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
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