Ahmed v. Doll

MAMOUN AHMED, Petitioner v. WARDEN CLAIR DOLL,¹ Respondent

CIVIL ACTION NO. 4:20-CV-2318

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

March 31, 2021

(BRANN, D.J.)

(ARBUCKLE, M.J.)

REPORT AND RECOMMENDATION

I. INTRODUCTION

Petitioner is a civil immigration detainee housed in York County Prison. He asks for release from custody on three grounds related to the COVID-19 pandemic and the length of his detention. None of these reasons for release, individually or together, justify relief. This petition for habeas corpus should be DISMISSED WITHOUT PREJUDICE to file again if circumstances change in a legally significant way.

II. FACTUAL BACKGROUND & PROCEDURAL HISTORY

On December 10, 2020, Mamoun Ahmed ("Petitioner") filed a Petition under 28 U.S.C. § 2241 seeking immediate release from the custody of United States Immigration and Customs Enforcement ("ICE") due to the risk of severe illnessposed by the COVID-19 pandemic in the prison setting. (Doc. 1). With his Petition, Petitioner filed a Motion to Expedite the case. (Doc. 2). On December 29, 2020, Petitioner paid the filing fee. On December 30, 2020, I issued a Show Cause Order (Doc. 6), setting forth an expedited briefing schedule. On January 8, 2021, Respondent filed a Motion for Extension of Time (Doc. 8) to respond to the Show Cause Order, which I granted (Doc. 9). On January 19, 2021, Respondent filed a Response (Doc. 10). Petitioner did not file a reply to Respondent's response, and his time to do so has passed. (See Doc. 6); see also Rule 5(e), 28 U.S.C. foll. § 2254.

In his Petition, Petitioner provides an overview of the events that have occurred since COVID-19 arrived in the United States and the government's attempt to control the virus's spread—specifically at York County Prison. Petitioner alleges that he "is 43 years old, Native and Citizen of Sudan. Who has been in ICE custody for more than 11-Months. He is Suffering from Diabetes and takes medication for it and also He takes medication For COVID-19 as he tested Positive." (Doc. 1, p. 7) (emphasis in original). Petitioner alleges he is at imminent risk if exposed to COVID-19, and York County Prison cannot adequately address that risk. Id. at p. 10, ¶ 22(ix-xi). He asserts that "the only course of action that will provide Petitioner with reasonable safety" is "to release Petitioner to his loving family and supportive community who can provide a safe haven for us during this pandemic." Id.

III. LEGAL STANDARD

Under 28 U.S.C. § 2241(c), a prisoner or detainee may receive habeas relief only if he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). When a petitioner seeks immediate release from custody, the "sole federal remedy" lies in habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Because Petitioner is in federal custody and seeks release, Section 2241 is the appropriate statute under which he may seek habeas relief.

IV. DISCUSSION

I address whether the length of Petitioner's detention constitutes a due process violation, whether the conditions of his confinement constitute unconstitutional punishment, and whether Respondent has been deliberately indifferent to the risks posed by the ongoing COVID-19 pandemic.

A. DUE PROCESS

Petitioner alleges in his Petition that he "has been in ICE custody for more than 11 months is Pro-longed already [sic] and need to be taken into Consideration." (Doc. 1, ¶ 21). Respondent argues that Petitioner has failed to allege sufficient facts to raise a prolonged-detention claim. (Doc. 10, pp. 34-35). However, because Petitioner appears to allege that his then-eleven (11)-month detention is prolonged, I construe the Petition as raising a due-process challenge to the length of Petitioner's detention without a bond hearing.

1. Petitioner's Immigration History

Petitioner is a native and citizen of Sudan. (Doc. 1, p. 7, ¶ 22). He has been in ICE custody since December 12, 2019.

Petitioner entered the United State on approximately November 1, 1997, without being admitted or paroled. (See Doc. 10-1, Ex. 1). He has been subject to a final order of removal since November 13, 2007, see id. at Ex. 3, but Respondent states he was released on an order of supervision in 2008. (Doc. 10, p. 8). On March 4, 2019, Petitioner was sentenced to eighteen (18) months' incarceration for Unlawful Possession of a Firearm. See United States v. Ahmed, No. 2:18-CR-00144 (M.D. Fl. 2019). He was transferred to Federal Correctional Institution Allenwood on May 16, 2019. See id. at ECF No. 49. Petitioner was released from Bureau of Prisons custody into ICE custody on December 12, 2019. See Bureau of Prisons, Find an Inmate, https://www.bop.gov/inmateloc/.

On October 5, 2020, ICE attempted to remove Petitioner to Sudan on a commercial flight. (Doc. 10-1, Ex. 4). Before departing York County Prison, Petitioner refused to sign the Warrant of Removal/Deportation and advised ICE officers that he did not intend to comply with the removal order. Id. ICE issued a Failure to Comply notice. Id. Respondent states that ICE informed him on December 31, 2020 that Petitioner was scheduled to be removed on a charter flight on January 14, 2021. (Doc. 10, p. 9). However, for reasons unknown to local ICE counsel at thetime of Respondent's Response, Petitioner was removed from the flight. Id. Petitioner therefore remains detained.

2. Statutory Basis for Petitioner's Detention

Petitioner, an alien as defined by 8 U.S.C. § 1101(a)(3), is detained pursuant to 8 U.S.C. § 1231(a). 8 U.S.C. § 1231 governs the detention, release, and removal of aliens who have been ordered removed from the United States. Under Section 1231, following an order of removal, the Attorney General is required to remove an alien within a ninety (90)-day "removal period." 8 U.S.C. § 1231(a)(1)(A). The removal period begins 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; or (iii) if the alien is detained or confined (except under the removal process), the date the alien is released from detention or confinement. 8 U.S.C. § 1231(a)(1)(B). After the ninety (90)-day removal period, detention is no longer mandatory. 8 U.S.C. § 1231(a)(3). However, 8 U.S.C. § 1231(a)(6) permits continued detention "beyond the removal period" for certain categories of aliens, such as Petitioner.

In addition, "[t]he removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien . . . acts to prevent the alien's removal subject to an order of removal." 8 U.S.C. § 1231(a)(1)(C).

3. Due Process Under 8 U.S.C. § 1231(a)(6)

In Zadvydas, the Supreme Court recognized six months as a "presumptively reasonable period" of post-final-order detention under Section 1231(a)(6). Zadvydas v. Davis, 533 U.S. 678, 688-89, 701 (2001). "After 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." Id.

In Guerrero-Sanchez, the Third Circuit further addressed due process concerns when an alien is detained under Section 1231(a)(6). Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 220 (3d Cir. 2018). The Court concluded that concluded that "an alien detained under § 1231(a)(6) is generally entitled to a bond hearing after six months (i.e., 180 days) of custody." Id. at 226. The alien is entitled to release "unless the government establishes [by clear and convincing evidence] that the alien poses a risk of flight or a danger to the community." Id. at 224 & n.12. However, if that six (6)-month period has passed "but the alien's release or removal is imminent," then no bond hearing is required. Id. at 226 n.15 (quoting Diouf v. Napolitano, 634 F.3d 1081, 1092 n.13 (9th Cir. 2011)).

Here, Petitioner's detention, which began on December 12, 2019, has extended beyond the "presumptively reasonable" six-month post-final-order period set forth in Zadvydas and Guerrero-Sanchez. Therefore, under Zadvydas, ifPetitioner provides "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future," then "the Government must respond with evidence sufficient to rebut that showing." 533 U.S. at 701. Under Guerrero-Sanchez, Petitioner is entitled to a bond hearing unless his removal is imminent. 905 F.3d at 226 n.15.

The Court agrees with Respondent that Petitioner is not entitled to relief under to Zadvydas because he has not met his burden of "provid[ing] good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future." See Zadvydas, 533 U.S. at 701; see also (Doc. 10, p. 36).² Conclusory allegations or a lack of evidence on the likelihood of continued detention will not sustain a Zadvydas claim. See, e.g., Umarbaev v. Lowe, 453 F. Supp. 3d 698, 700 (M.D. Pa. 2020) ("Without any facts or evidence beyond conclusory allegations to support his Zadvydas claim, the Court will not grant relief on this ground."). In addition to Petitioner providing no reason that he is unlikely to be removed in the reasonably foreseeable future, ICE in fact has taken recent steps to remove Petitioner, at least one of which Petitioner has not complied with. Petitioner is not entitled to relief under Zadvydas at this time.

Under Guerrero-Sanchez, Petitioner is entitled to a bond hearing if his removal is not "imminent." 905 F.3d at 226 n.15 (quotation omitted). Respondent asserts that "ICE anticipates [Petitioner's] removal will be imminent" because Sudan has issued Petitioner's travel document, ICE has attempted to remove Petitioner twice in the last three months, and ICE has been successfully removing people to Sudan...