Khader v. Holder, Civil Action No. 4:11–cv–1273–KOB–PWG.

• Decision Date: 07 July 2011
• Docket Number: Civil Action No. 4:11–cv–1273–KOB–PWG.
• Citation: 843 F.Supp.2d 1202
• Parties: Waled Naim KHADER, Petitioner, v. Eric HOLDER, United States Attorney General, et al., Respondents.
• Court: U.S. District Court — Northern District of Alabama

843 F.Supp.2d 1202

Waled Naim KHADER, Petitioner,

v.Eric HOLDER, United States Attorney General, et al., Respondents.

Civil Action No. 4:11–cv–1273–KOB–PWG.

United States District Court,

N.D. Alabama,

Middle Division.

July 7, 2011.

Samuel J. Brooke, Montgomery, AL, for Petitioner.

Carolyn Williams Steverson, U.S. Attorney's Office, Birmingham, AL, for Respondents.

MEMORANDUM OPINION

KARON OWEN BOWDRE, District Judge.

This is a action on a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. ( See Doc.¹ 1–1). The Petitioner, Waled Naim Khader, seeks review of the lawfulness of his continued detention by the United States Department of Homeland Security, Immigration and Customs Enforcement (“ICE”), pending deportation to Jordan. On June 27, 2011, the magistrate judge entered a report and recommendation stating that, under Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the Petitioner is due to be released under an order of supervision pending receipt of travel documents. (Doc. 9). On July 6, 2011, respondents have filed a motion to dismiss the action as moot because Petitioner has been released under an order of supervision. (Doc. 10). Upon consideration, the court finds that the respondents' motion is due to be granted and that the petition is due to be dismissed as moot.

In support of their motion to dismiss, the respondents have filed a copy of an unsworn declaration made pursuant to 28 U.S.C. § 1746 by a Deportation Officer stating that the petitioner was released on July 1, 2011 on an order of supervision. (Doc. 10–1). Thus, his petition seeking that very relief is moot. See Nyaga v. Ashcroft, 323 F.3d 906, 913 (11th Cir.2003) (“a case must be dismissed as moot if the court can no longer provide ‘meaningful relief’ ”); see also Spencer v. Kemna, 523 U.S. 1, 8, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (once a habeas petitioner is released from custody, he must demonstrate collateral consequences to avoid mootness doctrine).Accordingly, this matter is due to be dismissed. See Murphy v. Holder, 2010 WL 1994179 (N.D.Fla. April 13, 2010); Subrun v. Holder, 2009 WL 3568670 (S.D.Fla. Oct. 30, 2009); Dong v. Holder, 2009 WL 2987418 (S.D.Ala. Sept. 9, 2009). A separate order will be entered.

MAGISTRATE JUDGE'S REPORT & RECOMMENDATION

PAUL W. GREENE, United States Chief Magistrate Judge.

This is a action on a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. ( See Doc.¹ 1–1). The Petitioner, Waled Naim Khader, seeks review of the lawfulness of his continued detention by the United States Department of Homeland Security, Immigration and Customs Enforcement (“ICE”), pending deportation to Jordan. The action is before the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72, Fed.R.Civ.P. Upon consideration, it is RECOMMENDED that a writ of habeas corpus issue to the defendant directing that Waled Naim Khader be immediately released under an order of supervision.

I. BACKGROUND

Petitioner was born in Amman, Jordan, in 1983. (Doc. 6–1 (“Petitioner's Declaration” or “Pet. Decl.”) ¶ 1). His mother was born in Kuwait, while his father is Palestinian, born in the West Bank in 1953. (Id. ¶ 9(1)). Petitioner has lived in the United States since entering on or about August 19, 1990, through John F. Kennedy Airport in New York City. (Id. ¶¶ 2–3). At that time, Petitioner, then age seven, traveled under his mother's passport and on the authority of a student visa issued to his father. (Id. ¶¶ 2–3).

On July 9, 2010, Petitioner pled guilty in a Georgia state court to a charge of theft by taking, seeGa.Code Ann. § 16–8–2, and was sentenced to five years confinement, with 60 days to serve and 4 years and 10 months of probation. (Doc. 5–1 (“Declaration of Julianty Sutanto” or “Sutanto Decl.”) ¶ 10; Doc. 6–2). After his release from Georgia state custody on August 4, 2010, Petitioner was taken into custody by ICE officials. (Id. ¶¶ 10 & 12). On August 5, 2010, Petitioner was issued a Final Administrative Removal Order under Immigration and Nationality Act (“INA”) § 238, 8 U.S.C. § 1228. (Id. ¶ 13). That order provided for Petitioner's removal from the United States on the ground that he had been convicted of an “aggravated felony,” INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), which includes a “theft offense ... for which the term of imprisonment [is] at least one year.” INA § 1101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G). Petitioner did not appeal that order. (Pet. Decl. ¶ 5). As further described below, since the entry of the removal order, both United States immigration officials and the Petitioner have taken steps to secure required travel documents from Jordan authorizing Petitioner's removal to that country. These efforts have been unsuccessful, and Petitioner has remained in ICE custody at the Etowah County Detention Center in Etowah, Alabama. (Id. ¶ 4). Petitioner does not have a current passport or other travel document to Jordan. (Pet. Decl. ¶ 6). When he was a teenager he obtained a passport from Jordan which expired in the early 2000's. (Id.) Since being in ICE custody, Petitioner surrendered that expired passport to immigration officials. (Id.) On August 27, 2010, Petitioner's case was uploaded into the Electronic Travel Document request system, which allows ICE to request travel documents from an embassy or consulate and provides for the receipt of electronic travel documents directly from an embassy or consulate. (Sutanto Decl. ¶ 14). On September 4, 2010, Petitioner completed a Jordanian travel document application in English, as he does not read or write in Arabic. (Pet. Decl. ¶ 9(a); Sutanto Decl. ¶ 15). On September 15, 2010, ICE's Atlanta Enforcement and Removal Operations Office (“Atlanta ERO”) contacted the Jordan Embassy. A Jordanian Consular Officer confirmed that Petitioner would be permitted to complete the travel document application in English. She further advised that copies of Petitioner's expired passport were sufficient and that since Petitioner has a Jordanian birth certificate, he was not required to write his parents' full names. (Sutanto Decl. ¶ 16). On September 17, 2010, Petitioner's travel document request packet was sent to the Embassy of Jordan in Washington, D.C. (Id. ¶ 17).

Atlanta ERO officials have diligently and consistently attempted to communicate with the Jordan Embassy for a status update of Petitioner's travel document request. On October 4, 2010, the Jordan Embassy advised Atlanta ERO that the Petitioner's travel document request packet had been received and had been forwarded to Amman for decision by the Jordanian government. (Sutanto Decl. ¶¶ 18, 19). All attempts to obtain further information on the status have been fruitless. On January 3, 2011, a representative of the Jordan Embassy advised Atlanta ERO simply that the Petitioner's travel document application was pending with the Jordan government in Amman. (Id. ¶ 28). The same response was given again on January 31, March 18, March 30, April 6, and April 21, 2011.² (Id. ¶¶ 28, 34, 39, 42, 43). For his part, the Petitioner has also telephoned the Jordanian Embassy on multiple occasions, but he has also been told “repeatedly that the decision of whether to grant [him] a travel document will come from the Ministry of the Interior in Amman, Jordan, and that the Embassy in Washington, D.C., could not estimate when such a decision would be made.” (Pet. Decl. ¶ 8; see also id. ¶¶ 9, 10).

In addition, Atlanta ERO enlisted the assistance of the Headquarters Travel Document Unit (“HQTDU”), a division of ICE based in Washington, D.C., that assists with obtaining travel documents by meeting directly with representatives of embassies and consulates of the countries from whom travel documents are requested. (Id. ¶¶ 20, 23, 30, 31). While HQTDU agreed to assist, its efforts to obtain further information and expedite the deportation process have been unsuccessful as well. On February 11, 2011, HQTDU advised Atlanta ERO that the Jordan Embassy had cautioned HQTDU “that the immigration process is very complicated in Amman” but that the “Embassy would do everything in its power to help speed up the process.” (Id. ¶ 36). Nonetheless, on April 6, 2011, HQTDU advised Atlanta ERO that it had “not heard anything,” and on April 14, 2011, it added that there had “been no forward progress” on Petitioner's case. (Id. ¶¶ 44, 46).

On April 13, 2011, Petitioner filed a pro se habeas petition in the United States District Court for the Middle District of Alabama. (Doc. 1–1). However, the MiddleDistrict transferred the action to this court, which is in the district of confinement. (Docs. 1–4, 1–5). In this action, Petitioner argues that he is entitled to habeas relief to require his release from custody under an order of supervision. In response to an order to show cause why such relief is not due to be granted, the government has filed an opposition, with attached exhibits, moving the court to dismiss the petition. (Doc. 5). The Petitioner, having retained legal counsel, thereafter filed a reply (Doc. 6), and a motion for an expedited ruling and to set a hearing on his habeas petition. (Doc. 7).

II. DISCUSSION

ICE officials are generally required to remove aliens within 90 days of the commencement of what is known as the “removal period.” INA § 241(a)(1)(A), 8 U.S.C. § 1231(a)(1)(A). It is undisputed that the “removal period” in Petitioner's case began on August 5, 2010, the date when his order of removal became administratively final. See INA § 241(a)(1)(B)(i), 8 U.S.C. § 1231(a)(1)(B)(i). Petitioner obviously was not removed within the 90–day statutory removal period. However, where an alien, like Petitioner, is subject to removal for a criminal conviction pursuant to INA § 237(a)(2), 8 U.S.C. § 1227(a)(2), the INA provides that such a “criminal alien” “may be detained beyond the removal period and, if...