Ashqar v. Larose

• Decision Date: 26 March 2019
• Docket Number: Case No. 4:18 CV 1141
• Parties: DR. ABDELHALEEM ASHQAR, Petitioner, v. CHRISTOPHER J. LAROSE, et al., Respondents.
• Court: U.S. District Court — Northern District of Ohio

DR. ABDELHALEEM ASHQAR, Petitioner, v. CHRISTOPHER J. LAROSE, et al., Respondents.

Case No. 4:18 CV 1141

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION

March 26, 2019

Judge Christopher A. Boyko

Magistrate Judge James R. Knepp, II

REPORT AND RECOMMENDATION

INTRODUCTION

Petitioner Dr. Abdelhaleem Ashqar ("Petitioner"), an immigration detainee then in federal custody, filed a Petition for a Writ of Habeas Corpus 28 U.S.C. § 2241 ("Petition"). (Doc. 1). Respondents Christopher LaRose (Warden, Northeast Ohio Correctional Center), Rebecca Adducci, Detroit Field Office Director, United States Immigration and Customs Enforcement ("ICE")), Michael V. Bernacke (Chief, Removal International Operations Unit, ICE), Thomas D. Homan (Acting Director, ICE), and Kirstjen M. Nielsen (Secretary, United States Department of Homeland Security ("DHS")) filed a Response and Motion to Dismiss Improper Respondents. (Doc. 9).¹ Petitioner filed a Traverse (Doc. 10), and Respondents filed a Reply (Doc. 11). On November 7, 2018, the undersigned held an evidentiary hearing and took testimony. See Non-document entry dated November 7, 2018; Doc. 22 (transcript). The parties then filed status reports (Docs. 23, 24, 27), and Petitioner filed a renewed motion for discovery (Doc. 25), which Respondents opposed (Doc. 28), and Petitioner replied (Doc. 31). On December 21, 2018,Respondents filed a Motion to Dismiss for Lack of Jurisdiction. (Doc. 30). On January 21, 2019, Petitioner filed an opposition (Doc. 32), and on February 15, 2019, Respondents filed their reply (Doc. 34).

The district court has jurisdiction over the Petition under § 2241(a). This matter has been referred to the undersigned for a Report and Recommendation pursuant to Local Rule 72.2(b)(2). (Doc. 4). For the reasons discussed below, the undersigned recommends Respondents' Motion to Dismiss (Doc. 30) be granted and Petitioner's renewed discovery motion (Doc. 25) be denied as moot.

BACKGROUND

Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on May 17, 2018. (Doc. 1). In it, he alleged his detention pending removal violated 8 U.S.C. § 1231(a)(6) and the Substantive Due Process Clause under Zadvydas v. Davis, 533 U.S. 678 (2001) because his removal was not significantly likely in the reasonably foreseeable future. Petitioner sought release from custody, as well as an injunction preventing ICE re-detaining him without first establishing in this Court that his removal is reasonably foreseeable. (Doc. 1, at 14).

Before Detention

Petitioner is a Palestinian born in the West Bank. See Doc. 10-4 (Petitioner's Affidavit); Doc. 9-1, at 2 (August 7, 2018 Declaration of Michael Bernacke) (hereinafter "Bernacke Aug. Decl."). Neither Palestine, Israel, nor Jordan claim Petitioner as a citizen. See id. (Bernacke Aug. Decl.) (noting that each country had "denied ICE's requests for a travel document for Ashqar, as they do not believe him to be a citizen of their respective countries."); see also Doc. 1-3 (ICE Database listing Petitioner's "country of birth" as "Stateless").

Petitioner entered the United States on a J-1 visa in 1989. See Doc. 10-4 (Petitioner's Affidavit); Doc. 9-1, at 2 (Bernacke Aug. Decl.).²

In 1998, Petitioner was held in civil contempt for refusing to testify before a grand jury empaneled in the Southern District of New York about dealings with the terrorist organization Hamas. See United States v. Ashqar, 582 F.3d 819, 821 (7th Cir. 2009).

In 1999, Petitioner filed an asylum application; he attended hearings in immigration court in 1999 and 2000. (Doc. 9-1, at 2) (Bernacke Aug. Decl.).

On June 16, 2003, pursuant to a stipulated request for removal order and waiver of hearing, an immigration judge ordered Petitioner removed to Jordan. (Doc. 1-10); see also Doc. 9-1, at 2 (Bernacke Aug. Decl.); Doc. 1-9 (letter from ICE counsel confirming terms of agreement and stipulation).

On June 25, 2003, Petitioner was called to testify before a federal grand jury empaneled in the Northern District of Illinois, again regarding Hamas. Ashqar, 582 F.3d at 821. Petitioner refused to testify, and, as a result, was convicted in 2007 of criminal contempt and obstruction of justice. Id.³ Petitioner was sentenced to a total of 135 months' imprisonment. Id. at 822. The Seventh Circuit affirmed Petitioner's sentence. See id. at 825-26.

Petitioner completed his criminal sentence on June 13, 2017 and was transferred to ICE custody. See Doc. 9-1, at 2 (Bernacke Aug. Decl.); Doc. 1-4, at 2 (Bureau of Prisons Inmate Locator noting release date of June 13, 2017).

After Order of Removal

On September 28, 2017, ICE conducted an initial post-order custody review ("POCR") of Petitioner's status. (Doc. 1-5). Mark J. Hamilton, ICE Deputy Field Office Director, issued a "Decision to Continue Detention" explaining:

At this time we will not release you due in part to the following: You have a final order of removal from the United States and ICE is activity working with the Embassy of Jordan to obtain a travel document for your removal.

Id. (emphasis in original). The letter then stated that if Petitioner was not released or removed by December 9, 2017, jurisdiction of the custody decision would be transferred to the ICE Headquarters Post Order Review Unit in Washington, D.C. Id.

On October 31, 2017, the Embassy of Jordan wrote a letter to ICE stating: "[A]ccording to the documents provided, Mr. Ashqar is not a Jordanian citizen. Mr. Ashqar has to provide more documents containing a national number to prove he is Jordanian, otherwise he cannot be deported to Jordan." (Doc. 1-11).

On January 9, 2018, Michael V. Bernacke, ICE Headquarters Removal and International Operations Unit Chief, issued a second "Decision to Continue Detention" explaining:

You are a native and citizen of Palestine who last entered the United States on November 16, 1989, as a Non-Immigrant. A review of your criminal history reflects that you were convicted of the following offenses to include, Obstruction of Justice; Criminal Contempt and Racketeering. On June 16, 2003, you were issued a Final Order of Removal by an Immigration Judge (IJ).

ICE is currently working with the government of Palestine to secure a travel document for your removal from the United States. A travel document from the Government of Palestine is expected, therefore you are to remain in ICE custody at this time.

(Doc. 1-6).

That same day Annette Joseph, an agent of ICE's Removal International Operations Unit, emailed Petitioner's deportation officer stating Petitioner was "ineligible for a Palestinian traveldocument" because: 1) "Birth Certificate lacks I.D. #"; 2) "Subject possesses an Israeli I.D. # and the Israeli authorities continued to renew subject's I.D. document with the last renewal occurring in 1988"; 3) "Subject departed the territory in 1989." (Doc. 1-12). The email ends with: "Please seek removal to Israel." Id.

On April 13, 2018, Mr. Bernacke issued a third "Decision to Continue Detention" explaining:

You are a native of Palestine citizen of Israel who last entered the United States on November 16, 1989, as a Non-Immigrant. A review of your criminal history reflects that you were convicted of the following offenses to include, Obstruction of Justice; Criminal Contempt and Racketeering. On June 16, 2003, you were issued a Final Order of Removal by an Immigration Judge.

ICE is currently working with the government of Israel to secure a travel document for your removal from the United States. A travel document from the Government of Israel is expected, therefore you are to remain in ICE custody at this time.

(Doc. 1-7).

Five days later, on April 18, 2018, Mr. Bernacke issued a fourth "Decision to Continue Detention" which was identical to the one of April 13, except it eliminated the reference to a racketeering conviction. See Doc. 1-8.⁴

After Initiation of Federal Court Habeas Proceedings

On May 17, 2018, Petitioner filed the pending Petition. (Doc. 1).

On June 25, 2018, Mr. Bernacke issued a fifth "Decision to Continue Detention" explaining:

You are a native of Palestine citizen of Israel who last entered the United States on November 16, 1989, as a Non-Immigrant. A review of your criminal history reflects that you were convicted of the following offenses to include, Obstruction of Justice and Criminal Contempt. On June 16, 2003, you were issued a Final Order of Removal by an Immigration Judge.

ICE is currently working with the government of Israel to secure a travel document for your removal from the United States. A travel document from the Government of Israel is expected, therefore you are to remain in ICE custody at this time.

(Doc. 10-1).

At some point, the Embassy of Israel denied ICE's request for a travel document because Petitioner was not a citizen. See Doc. 9-1, at 2 (Bernacke Aug. Decl.). Further, "[t]he Government of Jordan affirmed their previous denial after ICE made a renewed request for travel documents." Id.

In July 2018, the Government re-submitted travel document requests to Israel and Palestine. (Doc. 11-1, at 1) (September 12, 2018 Declaration of Michael Bernacke) (hereinafter "Bernacke Sept. Decl."). Mr. Bernacke asserted that the Removal and International Operations Unit "will be engaging the Government of Israel in additional negotiations in the near future." Id.

In August, Mr. Bernacke asserted, inter alia, that:

5. [Enforcement and Removal Operations] generally submits travel document requests to the Embassies of Israel, Jordan, and the General Delegation of the Palestinian Liberation Organization to the U.S. in Washington, D.C. These requests consist of documents such as a travel document application, U.S. immigration documents, photographs of the alien, and identity documents, if available.

6. ICE has extensive experience removing criminal aliens to the above-mentioned locations. ICE routinely obtains travel documents from these entities via liaison efforts with embassy and

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