Mashai v. I.N.S., Civil Action No. 02-9533.

• Decision Date: 16 April 2003
• Docket Number: Civil Action No. 02-9533.
• Parties: Ali Toem MASHAI, A78-520-634, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. District Court — Eastern District of Pennsylvania

256 F.Supp.2d 371

Ali Toem MASHAI, A78-520-634, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Civil Action No. 02-9533.

United States District Court, E.D. Pennsylvania.

April 16, 2003.

Richard M. Bernstein, U.S. Attorney's Office, Philadelphia, PA, for Respondent.

MEMORANDUM

DuBOIS, District Judge.

Presently before the Court is petitioner Ali Toem Mashai's Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, challenging his continued detention by the Immigration and Naturalization Service ("INS") pending his removal to Iraq. For the reasons set forth in this Memorandum, the Court denies the Petition without prejudice to petitioner's right to proceed under the custody review procedures of 8 C.F.R. § 241.4 if warranted by future circumstances.

I. BACKGROUND

Petitioner, Ali Toem Mashai ("Mashai"), is a native and citizen of Iraq. On June 7, 2001, Mashai arrived in the United States at John F. Kennedy International Airport in New York from Switzerland. Pursuant to § 235(a)(1) of the Immigration and Nationality Act ("INA"), Mashai, as an alien "who arrive[d] in the United States" was deemed "an applicant for admission." 8 U.S.C. § 1225(a)(1). As an "applicant for admission," he was required to be inspected by immigration officers. See 8 U.S.C. § 1225(a)(3). During that inspection, immigration officers determined that Mashai was inadmissible because he presented a fraudulent passport from Denmark. See 8 U.S.C. § 1182(a)(6)(C)(i) (providing that an alien who seeks admission through misrepresentation or fraud is inadmissible); 8 U.S.C. § 1182(a)(7)(A)(i)(I) (stating that an immigrant applying for admission who is not in possession of a valid, unexpired passport is inadmissible).

If an immigration officer determines that an alien "who is arriving in the United States" is inadmissible because of a fraudulent passport, that officer "shall order the alien removed from the United States without further hearing or review." 8 U.S.C. § 1225(b)(1)(A)(i). If, however, the alien "indicates ... an intention to apply for asylum" during the inspection, the alien's immediate removal is stayed and he is detained by the INS for consideration of his application for asylum. See 8 U.S.C. §§ 1225(b)(1)(A)(ii) and 1225(b)(1)(B)(ii).

Mashai subsequently applied for asylum, staying his immediate removal from the United States. His application was referred to an Immigration Judge ("IJ") who denied the application on October 18, 2001 and ordered Mashai removed. See 8 C.F.R. § 235.6(a)(ii); 8 C.F.R. § 208.30(f). The IJ's decision was affirmed by the Board of Immigration Appeals ("BIA") on March 13, 2002. Mashai did not appeal that ruling ordering him removed from the United States.

Because Mashai attempted to use a false passport upon his arrival in the United States, in November 2001 he was charged with committing passport fraud in violation of 18 U.S.C. § 1546. Mashai was convicted of that offense on May 8, 2002, and sentenced to time served-—six months—in prison.

Mashai filed the instant Petition on December 31, 2002. Currently, he is being detained by the INS at Berks County Prison in Leesport, Pennsylvania pending his removal to Iraq.

II. DISCUSSION

Mashai does not challenge the BIA's decision of March 13, 2002 removing him from the United States. Rather, Mashai argues that the INS's failure to promptly remove him, resulting in his continued detention in INS custody, is violative of due process. Mashai asserted in the Petition that because it is "impossible" to obtain the travel documents necessary for his removal to Iraq, his removal is "unlikely to occur in the reasonably foreseeable future or indeed at any time." Pet. at 2. That assertion was based on the fact that the United States did not have any diplomatic relations with Iraq at that time.¹ Gov't Resp. at Ex. 2. Mashai contends that his indefinite detention is constitutionally impermissible under the United States Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).

A. The Immigration Scheme Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the Zadvydas Decision

1. Removal Proceedings

This case is governed by the Illegal Immigrant Reform and Immigrant Responsibility Act ("IIRIRA") of 1996. Under the IIRIRA, aliens who "arrive" at the border seeking entry into the country are deemed to be "applicants for admission" to the country. 8 U.S.C. § 1225(a)(1); see also 8 C.F.R. § 1.1(q) (defining an arriving alien as an "applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry"). Such "arriving" aliens who are inspected at the border but are denied admission are classified as "inadmissible" aliens because they are not officially admitted into the United States. See 8 U.S.C. §§ 1101(a)(13)(A) and 1182(6)(A)(i).

If an alien is ordered removed from the United States, his detention, release and removal is governed by the provisions of 8 U.S.C. § 1231. Pursuant to 8 U.S.C. § 1231(a), the Attorney General shall remove an alien from the United States within ninety days after the date that the removal becomes "administratively final." During that ninety-day "removal period," detention of the alien is mandatory. 8 U.S.C. § 1231(a)(2). At the conclusion of the ninety-day period, the alien may be released under the Attorney General's supervision, 8 U.S.C. § 1231(a)(3), or detained beyond the ninety-day removal period if he is "inadmissible under section 1182 of this title." 8 U.S.C. § 1231(a)(6).²

2. The Zadvydas Decision

In Zadvydas, the Supreme Court addressed the issue of whether 8 U.S.C. § 1231(a)(6) authorizes the Attorney General to detain a removable alien indefinitely beyond the ninety-day period. Reasoning that an alien's indefinite detention "would raise serious constitutional concerns," 533 U.S. at 682, 121 S.Ct. 2491, the Court concluded that the statute "limits an alien's post-removal-period detention to a period reasonably necessary to bring about the alien's removal from the United States. It does not permit indefinite detention." Id. at 689, 121 S.Ct. 2491. The Court stated that "once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." Id. at 699, 121 S.Ct. 2491.

The Supreme Court held in Zadvydas that a period of six (6) months is a presumptively reasonable period of detention. Id. at 701, 121 S.Ct. 2491. The Court further ruled that "[a]fter this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of postremoval confinement grows, what counts as the `reasonably foreseeable future' conversely would have to shrink." Id. The Court made clear, however, that this "does not mean that every alien not removed must be released after six months. 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.

3. The Zadvydas Decision Does Not Apply to Mashai

The Government argues that because Zadvydas limited its holding to those aliens who had been "admitted" or gained "entry" into the United States, that decision is inapplicable to Mashai because he had not gained admission nor effected an entry into the country. According to the Government, because Mashai was detained at the airport and denied admission into the United States because he presented a fraudulent passport, he is an inadmissible alien and thus not covered by the holding of Zadvydas. The Court agrees.

The Supreme Court in Zadvydas emphasized that its due process analysis of the post-removal-period detention statute was confined to those aliens who had been "admitted" to the United States or had "effected an entry" into the United States:

We deal here with aliens who were admitted to the United States but subsequently ordered removed. Aliens who have not yet gained initial admission to this country would present a very different question. * * *

The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. But once an alien enters the country, the legal circumstances changes, for the Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.

533 U.S. at 682, 694, 121 S.Ct. 2491 (citations omitted).

The Zadvydas Court did not interpret the post-removal-period detention statute as applying equally to those inadmissible aliens, like Mashai, who had been stopped at the border and denied admission and those inadmissible aliens who gained entry into the United States, whether lawfully or unlawfully. Had Mashai passed through customs without being detained, Zadvydas would be applicable because, in that scenario, he would have effected a successful entry into the country, albeit illegally. See Lin v. Ashcroft, 247 F.Supp.2d 679, 684-85 (E.D.Pa.2003) (holding that Zadvydas applies to inadmissible aliens who have illegally entered the United States); Jiang v. Ashcroft, Civil No. 3.CV-01-1621, slip op. at 6 (M.D.Pa. May 28, 2002); Zhang v. INS, Civil No. 3:CV-00-1950, slip op. at 5 (M.D.Pa. May 23, 2002); Zheng v. INS, Civil No. 1:CV-01-2166, slip op. at 6 (M.D.Pa. March 12, 2002). The fact that Mashai was apprehended at a port-of-entry, however, is fatal to his claim that he is entitled to the due process protections set forth in Zadvydas.

On November...