Abdulle v. Gonzales

Decision Date28 March 2006
Docket NumberNo. EP-05-259-DB.,EP-05-259-DB.
Citation422 F.Supp.2d 774
PartiesAli M. ABDULLE, Petitioner, v. Alberto GONZALES, Attorney General, et al., Respondents.
CourtU.S. District Court — Western District of Texas

Ali M. Abdulle, El Paso, TX, Pro se.

David H. Burke, U.S. Attorney's Office, Jose J. Tavarez, Special Assistant U.S. Attorney, Immigration And Naturalization Services, Magdalena G. Jara, Assistant U.S. Attorney, El Paso, TX, David H. Burke, for Respondents.

MEMORANDUM OPINION ORDER

BRIONES, District Judge.

On this day, the Court considered Respondents' "Motion To Dismiss," filed in the above-captioned cause on August 1, 2005. On September 7, 2005, Petitioner Ali M. Abdulle filed a Response, which he supplemented with "Supporting Case Law" on October 20, 2005. On February 23, 2006, Petitioner filed a Supplemental Response.1 Respondents, in turn, filed a "Memorandum Of Points And Authorities" ("Reply") on March 2, 2006. On March 13, 2006, Petitioner filed a "Response To Respondent's [sic] Memorandum Of Points And Authorities Filed on March 1, 2006 [sic]." After due consideration, the Court is of the opinion that Respondents' Motion should be denied, and that, on or before April 28, 2006, Respondents should show cause why the relief Petitioner seeks should not be granted.

BACKGROUND

Petitioner is a native and citizen of Somalia, who was admitted to the United States on or about November 1986. As a result of several criminal convictions, as well as for overstaying the time permitted by his non-immigrant visa, Petitioner was detained and placed into removal proceedings on May 24, 2004.2 On June 3, 2004, an Immigration Judge ordered Petitioner removed from the United States. Petitioner waived his right to appeal his removal order. Petitioner remains in Respondents' custody.

On January 17, 2003, the Western District of Washington entered an Order certifying a nationwide class action3 and issued an injunction which precluded the Immigration and Naturalization Service4 from removing individuals to Somalia. Ali v. Ashcroft, 213 F.R.D. 390, 395 (W.D.Wash.2003). The Ali court held that a foreign government's consent was required before individuals could be removed to that foreign country. Id. at 401-05. Specifically, the Ali court found that because Somalia has no functioning central government which could accept deportees, INS could not remove individuals to Somalia. See id. On appeal, the Ninth Circuit upheld the injunction. Ali v. Ashcroft, 346 F.3d 873, 876 (9th Cir.2003). Subsequently, in Jama v. Immigration and Customs Enforcement, the Supreme Court held that Somalia's inability to consent in advance to an alien's removal did not preclude the alien's removal to Somalia as his country of birth. 543 U.S. 335, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005). Thereafter, the Ninth Circuit withdrew its Ali opinion and remanded the cause to the district court. 421 F.3d 795 (9th Cir.2005). The Ali injunction remains intact.

Abdulle filed a "Petition For A Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2241" on July 7, 2005. On July 14, 2005, the Court entered an Order requiring Respondents to show cause why the Petition should not be granted. The instant Motion followed.

STANDARD

Rule 12(b)(6) allows dismissal of a case when the plaintiff fails to state a claim upon which relief can be granted.5 12(b)(6). Under Rule 12(b)(6), a court must decide whether the facts alleged, if true, would entitle the plaintiff to some legal remedy. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 351 (5th Cir. 1989). Dismissal for failure to state a claim is highly disfavored and is not granted routinely because of the liberal "notice pleading" requirements of the Federal Rules. FED.R.CIV.P. 8(a); Shipp v. McMahon, 199 F.3d 256, 260 (5th Cir.2000). In short, a court should not dismiss a claim under Rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80.

DISCUSSION

As an initial matter, the Court pauses to address its jurisdiction to entertain Abdulle's Petition. It first notes that the Real ID Act stripped district courts of jurisdiction over 28 U.S.C. § 2241 petitions attacking removal orders.6 See Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 735-36 (5th Cir. 2005). Nonetheless, the Real ID Act left intact a district court's ability to adjudicate an alien's claim regarding the constitutionality of his continued detention. See, e.g., Gul v. Rozos, 163 Fed.Appx. 317, 2006 WL 140540 at *1 (5th Cir.2006). Thus, because Petitioner challenges his continued detention, rather the validity of his removal order, the Court is fully empowered to consider his claim, as well as Respondents' instant Motion. See id.

Through their Motion, Respondents request that the Court dismiss Abdulle's Petition for failure to state a claim upon which relief may be granted. Respondents assert that Petitioner's continued detention is constitutionally permissible because "there is a significant likelihood that Abdulle can be removed in the foreseeable future." Alternatively, through their Reply, Respondents argue that the Ali injunction tolls the removal period, such that Petitioner's continued detention remains constitutional. The Court begins by examining Respondents' suggestion that the removal period has not begun to run, before addressing whether Petitioner's removal is significantly likely in the foreseeable future. Ultimately, the Court finds both of Respondents' arguments unpersuasive. Further, the Court concludes that the facts alleged in Abdulle's Petition, if true, would entitle him to some legal remedy, and thus denies Respondents' Motion. See Xerox Corp., 888 F.2d at 351.

I. Beginning of Removal Period

When a final order of removal has been entered against an alien, the Government must facilitate that alien's removal within a 90-day "removal period." See 8 U.S.C.A. § 1231(a)(1) (West 1999). That removal period begins on the latest of the following: (i) the date the order of removal becomes administratively final; (ii) 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; (iii) if the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement. Id. at §§ 1231(b)(i)-(iii). Here, Respondents argue that, pursuant to § 1231(b)(ii), Petitioner's removal period has not begun to run because the Ali injunction orders a stay of Petitioner's removal, and that the removal period will not begin until the Ali injunction is lifted.

Respondents' argument misses the mark. Section 1231(b)(ii), by its very language, applies only when a court reviews the propriety of an alien's removal order and stays that alien's removal. Id. at § 1231(b)(ii). That is not the case here. Petitioner never requested judicial review of his removal order, as evidenced by his waived appellate rights. Similarly, the Western District of Washington reviewed whether the Government could remove aliens to Somalia, but did not examine, nor stay, any alien's removal order. See Ali, 213 F.R.D. at 395. Indeed, the Ali court engaged in a lengthy analysis explaining that its jurisdiction over the cause was premised on the very fact that it was not reviewing any immigration judge's determinations of removability. Id. at 398-400. Rather, the Ali injunction applies only to aliens "subject to orders of removal, expedited removal, deportation or exclusion to Somalia that are either final or that one or more of the Respondents believe to be final...." Id. at 395. Thus, if Petitioner's removal order was not final or perceived to be final, he would not be considered part of the class certified by the Western District of Washington. See id. For all of these reasons, the beginning of Petitioner's removal period is not governed by § 1231(b)(ii). Instead, because Petitioner waived his right to appeal, Petitioner's removal order became final the day it was entered, June 3, 2004. See 8 C.F.R. § 1241.1(b).

Having determined that Petitioner's removal period began to run on June 3, 2004, the Court turns to assessing Respondents' contention that Petitioner has failed to state a claim because his continued detention is constitutionally permissible.

II. Continued Detention Beyond the Removal Period

During an alien's removal period, the Government must detain the alien until he or she is actually removed. See 8 U.S.C.A. § 1231(a)(2). In situations where removal cannot be accomplished within 90 days,7 detention beyond the removal period is authorized by § 1231(a)(6), which provides:

An alien ordered removed who is ... removable . . . [for committing a criminal offense] or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).

Id. at § 1231(a)(6).

The Government's ability to detain an alien pursuant to § 1231(a)(6), however, is not unlimited. In Zadvydas v. Davis, the Supreme Court held that in order to avoid a "serious constitutional threat," § 1231(a)(6) must be construed as limiting an alien's post-removal-period detention to the period reasonably necessary to remove the alien from the United States. 533 U.S. 678, 699, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); see also Clark v. Martinez, 543 U.S. 371, 384, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (reiterating that, under Zadvydas, § 1231(a)(6) authorizes detention not until the detention approaches constitutional limits, but only for a period consistent with the purpose of effectuating removal). The Court determined that a presumptively reasonable period of post-removal detention is limited...

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