Habtegaber v. Jenifer, 03-70132.

• Decision Date: 04 February 2003
• Docket Number: No. 03-70132.,03-70132.
• Citation: 256 F.Supp.2d 692
• Parties: Benyam HABTEGABER, A# 71 659 646 Petitioner, v. Carol JENIFER, et al Respondents.
• Court: U.S. District Court — Eastern District of Michigan

256 F.Supp.2d 692

Benyam HABTEGABER, A# 71 659 646 Petitioner, v. Carol JENIFER, et al Respondents.

No. 03-70132.

United States District Court, E.D. Michigan, Southern Division.

February 4, 2003.

Benyam Habtegaber, Monroe, MI, Pro se.

Nancy B. Pridgen, United States Attorney's Office, Detroit, MI, for Respondents.

OPINION AND ORDER GRANTING WRIT OF HABEAS CORPUS

ROBERTS, District Judge.

I. INTRODUCTION

This matter is before the Court on Benyam Habtegaber's Petition for Writ of Habeas Corpus. For the reasons stated below, the Court GRANTS Habtegaber's petition, subject to certain conditions of supervised release.

II. BACKGROUND

Petitioner Benyam Habtegaber is a native of Eritrea and citizen of Ethiopia. He arrived in the United States on November 30, 1990. He was granted legal permanent resident status on August 26, 1992. He is a full time student at Eastern Michigan University and was to graduate in December of 2002 with a degree in sports medicine.

Petitioner has been convicted of several offenses. On August 22, 1997, he was convicted in the King County District Court, Seattle Division, Seattle, Washington of unlawful issuance of bad checks or drafts and was sentenced to 365 days in jail. On December 10, 1998, he was convicted in the 56th District Court in Charlotte, Michigan for the offense of "check no account" and sentenced to 30 days incarceration and 2 years of probation. On December 21, 1998, he was convicted in the 54-B District Court in East Lansing, Michigan on two counts of "check non-sufficient funds over $50 but less than $200" and sentenced to 29 days in jail and 2 years probation. Petitioner asserts that he successfully completed probation in each instance..

Petitioner applied for naturalization with the Immigration and Naturalization Service (INS) on November 21, 1997, but withdrew the application on August 11, 2000. Thereafter, on January 28, 2002, the INS Issued a Notice to Appear, charging Petitioner with being a removable alien, due to his criminal convictions. The INS brought this charge pursuant to 8 USC §§ 1227(a)(2)(A)(ii) and (iii) of the Immigration and Nationality Act (INA).¹ The INS took Petitioner into custody on January 28, 2002, pending proceedings before an Immigration Judge. On July 9, 2002, an Immigration Judge found that petitioner was removable as charged and ordered him removed to Ethiopia.²

Petitioner initially waived his right to appeal the order of removal to the Board of Immigration Appeals (BIA). However, per Respondent, on August 5, 2002, Petitioner filed an appeal with the BIA alleging that his original waiver of appeal was not knowing and voluntary. Petitioner withdrew his appeal on September 5, 2002.

III. ARGUMENTS OF THE PARTIES

Petitioner asserts that the order of removal became final on July 9, 2002, and cites to Zadvydas v. Davis, 533 U.S. 678, 700-701, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), which held that 6 months is a presumptively reasonable amount of time to allow the government to accomplish an alien's removal. Petitioner asserts that the six-month period ran on January 9, 2003. Therefore, Petitioner asserts that he is entitled to be released subject to supervision as set forth in 8 USC § 1231(a)(3)³ and 8 CFR 241.5⁴. In his two-count petition, Petitioner contends that his continued detention violates 8 USC § 1231(a)(6)⁵ and his Fifth Amendment substantive and procedural due process rights, because the INS has been unable to remove him to Ethiopia or any other country. Petitioner argues that he meets all of the statutory requirements for release: he is not a threat to the community or a flight risk.⁶

In an effort to cooperate with efforts to remove him from the United States, Petitioner has contacted the Eritrean and Ethiopian embassies requesting travel documents. He has also contacted the embassies in Sweden, the Netherlands and Royal Danish requesting asylum. Per Petitioner, a consul at both the Eritrean and Ethiopian embassies orally denied his request for travel documents. Petitioner asserts that he was denied by the Eritrean consul because he is unable to produce documents (a birth certificate or national identity card) proving his citizenship. He states that he was denied by the Ethiopian consul because Eritrea has gained its independence from Ethiopia and, therefore, Petitioner is no longer considered an Ethiopian citizen.

Petitioner attaches a letter from the Netherlands advising that aliens are only allowed to reside there with a residence permit if their presence serves essential Dutch interests or there are urgent humanitarian concerns. The Vice Consul further states that neither of these reasons appears to apply in Petitioner's case, but directs him to a website setting forth the requirements for obtaining refugee status. The response from the Danish Consular advised that Petitioner cannot receive an application for asylum under Danish law, but referred him to the United Nations High Commissioner for refugees. A letter from Sweden advises that Petitioner can only apply for asylum at a police station there.

Respondent Carol Jenifer, District Director of the INS, objects to Petitioner's release, arguing that the presumptive six-month period has not expired. Respondent asserts that the BIA "dismissed" Petitioner's appeal on September 5, 2002 and, therefore, the order of removal did not become final until that date. Respondent contends that the INS has been working to obtain the necessary travel documents to return Petitioner to Ethiopia. However, the INS has yet to receive a response from the Ethiopian or Eritrean embassies to its written inquiries dated July 26, 2002. Respondent asserts that the INS should be given the full six-month period to attempt to effectuate Petitioner's removal, via negotiations with the Ethiopian consulate.

Citing Zadvydas, Respondent further argues that Petitioner is not automatically entitled to a release from detention at the end of the six-month period. Rather, "an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future." 533 U.S. at 701, 121 S.Ct. 2491. Respondent contends that this case is analogous to Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002), in which the court stated that, "in order to state a claim under Zadvydas, the alien not only must show post-removal order detention in excess of six months but also must provide evidence of a good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future." The petitioner in Akinwale had only been in post-removal order detention for four months and had failed to present facts showing that his removal could not be effectuated. 287 F.3d at 1051-1052.

IV. ANALYSIS

Once an alien is ordered removed, the Immigration and Nationality Act (INA) states that the Attorney General is obligated to effect the removal within 90 days. 8 USC § 1231(a)(1)(A). After an order of removal becomes final and during the 90-day removal period, aliens must be held in custody.⁷ 8 USC § 1231(a)(2). However, an alien may be detained beyond the 90 day period if he/she is inadmissible (under 8 USC § 1182), removable (under certain provisions of 8 USC § 1227) or has been determined to be a risk to the community or unlikely to comply with the order of removal. 8 USC § 1231(a)(6).

Recently, the United States Supreme Court in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) held that detention under § 1231(a)(6) may not continue indefinitely. Rather, the Court held that six months (from the date the order of removal becomes final) is a presumptively reasonable period of detention to secure an alien's removal from the United States. Id at 700-701, 121 S.Ct. 2491. The Court held, "once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." Id at 699, 121 S.Ct. 2491.

Therefore, the Court instructs habeas courts to determine whether the detention exceeds a period reasonably necessary to secure removal. Id. The Court further stated:

[Habeas courts] should measure reasonableness primarily in terms of the statute's basic purpose, namely, assuring the alien's presence at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized by statute. In that case, of course, the alien's release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and the alien may no doubt be returned to custody upon a violation of those conditions.

Id at 699-700, 121 S.Ct. 2491. The Court went on to state that its holding does not require district courts to automatically release every alien upon expiration of the six-month term. Id at 701, 121 S.Ct. 2491. "To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future." Id.

The burden of establishing that there is no significant likelihood of removal in the reasonably foreseeable future is on the movant.⁸ Id. The government must then produce evidence to rebut the movant's showing. Id.

In this case, the Court finds that the presumptively reasonable six-month period of detention has run. Respondent improperly characterizes the BIA's actions on September 5, 2002, with regard to Petitioner's appeal, as a "dismissal." The BIA's Order, in fact, only acknowledged that Petitioner's appeal was withdrawn and stated that the record would be returned to the Immigration Court without further action. In noting the withdrawal, the BIA references 8 CFR § 3.4, which states in relevant part:

In any case in which an appeal has been taken, the party taking the appeal may file a written withdrawal thereof with the office at which the notice of appeal was filed. If the record in the case has...