United States District Court, N.D. Alabama, Middle Division
MAGISTRATE JUDGE'S REPORT AND
N. JOHNSON, JR. UNITED STATES MAGISTRATE JUDGE
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.
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. (Id., at 5). In turn, the BIA
remanded to the IJ on February 3, 2016. (Id.).
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. 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).
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.).
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. (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).
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.
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. 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)).
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.” Id.
provided an opportunity to do so,  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.
reasons set forth herein, the magistrate judge
RECOMMENDS that the petition ...