Flores v. Hassell

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HERMAN N. JOHNSON, JR. UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on the petition for a writ of habeas corpus filed by Edson Flores, an immigration detainee, pursuant to 28 U.S.C. § 2241. (Doc. 1). In accordance with the court's usual procedure, the petition was referred to the undersigned magistrate judge for a preliminary report and recommendation. For the reasons set forth herein, the undersigned RECOMMENDS that the court DISMISS the habeas corpus petition WITHOUT PREJUDICE.

         PROCEDURAL HISTORY

         In his September 13, 2018, petition, the petitioner asserts his continued detention violates substantive and procedural due process requirements pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001). (Doc. 1). Petitioner, a citizen of Honduras currently detained at the Etowah County Detention Center in Gadsden, Alabama, asserts he has been detained since June 10, 2011, when he finished a prison sentence and was taken into ICE custody. (Doc. 1 at 3). On January 6, 2012, an Immigration Judge (“IJ”) ordered the petitioner removed to Honduras, and on May 22, 2012, the Board of Immigration Appeals (“BIA”) denied his appeal. (Id., at 4). On June 18, 2012, the petitioner filed a petition for review and a request for stay of removal in the Second Circuit Court of Appeals. (Id.). On February 26, 2015, the Second Circuit vacated the decision of the BIA and remanded for further proceedings.^[1] (Id., at 5). In turn, the BIA remanded to the IJ on February 3, 2016. (Id.).

         On March 22, 2017, an IJ again ordered the petitioner removed. (Doc. 1 at 5). The petitioner again appealed to the BIA, which dismissed his appeal on October 17, 2017. (Id.). On October 23, 2017, the petitioner filed another petition for review and a request for stay of removal in the Second Circuit. (Doc. 1 at 5; doc. 7 at 4.). That appeal remains pending.^[2] On July 10, 2018, the Second Circuit granted the stay of removal and appointed counsel to assist the petitioner. See Flores v. Whitaker, Appeal No. 17-3421 (2nd Cir. July 10, 2018).

         The respondents, through the affidavit of Bryan S. Pitman, Supervisory Detention and Deportation Officer, state that Honduras maintains strong ties with the United States and routinely issues travel documents to repatriate their citizens. (Doc. 7-1 at 4). Honduras has previously issued a travel document for the petitioner and will likely again do so when the pending litigation is resolved. (Id.).

         In the instant petition, the petitioner asserts his detention since October 17, 2017, when his order of removal became final, violates Zadvydas, supra, and that Honduras is unlikely to issue travel documents.^[3] (Doc. 1 at 5, 9-10). The Government responds that the petitioner's detention is lawful and relief should be denied because removal is likely in the foreseeable future. (Doc. 7 at 11). The Government further asserts the removal period has been extended by the stay of removal entered by the Second Circuit. (Doc. 7 at 6).

         DISCUSSION

         Once an order of removal becomes final, the government has a statutory “removal period” of 90 days to accomplish removal. 8 U.S.C. § 1231(a)(1)(A). However, 8 U.S.C. § 1231(a)(6) allows for a criminal alien to “be detained beyond the removal period….” In Zadvydas, the Supreme Court interpreted this language to provide an additional 90 days in which the government may accomplish removal. Id., 533 U.S. at 701. Therefore, to set forth a viable claim for release under Zadvydas, a petitioner must demonstrate (1) post-removal order detention greater than six months; and (2) no significant likelihood of removal in the reasonably forseeable future. Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002). “This six-month period … must have expired at the time [the petitioner's] § 2241 petition was filed in order to state a claim under Zadvydas.” Id.

         The six month time period begins to run on the date the order of removal becomes administratively final, 8 U.S.C. § 1231(a)(1)(B)(i), or “if the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order, ” 8 U.S.C. § 1231(a)(1)(B)(ii), whichever occurs later.^[4] Here, the order of removal became final on October 17, 2017. However, on July 10, 2018, the Second Circuit issued a stay of removal. Thus, under § 1231(a)(1)(B)(ii), the petitioner's presumptive removal period has been halted. See Akinwale, 287 F.3d at 1052 n.4 (referring to a motion to stay deportation as “interrupting the running of time under Zadvydas”); see also Deacon v. Shanahan, 2016 WL 1688577, *5 (N.D.Ala. 2016); Harrison v. Holder, 2012 WL 4479258, *4 (N.D.Ala. 2012); Guentangue v. Bateman, 2006 WL 3361428, *4 (S.D.Ala. 2006). Until the Second Circuit issues a final order in the petitioner's appeal, the presumptive removal period does not run. Deacon, 2016 WL 1688577 at *5 (citing Poole v. Streiff, 2007 WL 2083618, at *1 (S.D. Ala. July 18, 2007)).

         The Eleventh Circuit also interprets the filing of a motion for stay of deportation as extending the removal period under 8 U.S.C. § 1231(a)(1)(C), which permits an extension when the alien “acts to prevent the alien's removal subject to an order of removal.” Akinwale, 287 F.3d at 1052 n.4. Like the petitioner in Akinwale, the petitioner here has chosen to “simultaneously challenge issues related to his removal order and his post-removal period detention.”^[5] Id.

         Although provided an opportunity to do so, ^[6] the petitioner does not address either of the government's arguments, namely that pursuant to Akinwale, the petitioner's continued detention is lawful, or that his detention is authorized by 8 U.S.C. § 1231(a)(6). Particularly, even if not constrained by the stay of removal issued by the Second Circuit, the petitioner has failed to show his removal is unlikely in the foreseeable future and thus would not be entitled to any relief. Addressing the petitioner's claim that Honduras is unlikely to issue travel documents for him, the Government asserts that Honduras has cooperated with removals of aliens from the United States in the past, and in fact, has previously issued a travel document for the petitioner. (Doc. 7-1 at 4). The petitioner has provided no evidence to support his claim that his removal in the reasonable foreseeable future is unlikely, despite his burden to do so. See Zadvydas, 533 U.S. at 701; Akinwale, 287 F.3d at 1052.

         RECOMMENDATION

         For the reasons set forth herein, the magistrate judge RECOMMENDS that the petition ...