Kektyshev v. Doll, CIVIL NO. 4:20-CV-1744

ESEN KEKTYSHEV,¹ Petitioner v. WARDEN CLAIR DOLL,² Respondent

CIVIL NO. 4:20-CV-1744

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

December 1, 2020

(MARIANI, D.J.)

(ARBUCKLE, M.J.)

REPORT AND RECOMMENDATION

I. INTRODUCTION

On September 24, 2020, Petitioner Esen Kektyshev ("Petitioner"), along with ten (10) other United States Immigration and Customs Enforcement ("ICE") detainees at York County Prison, filed a Petition for Writ of Habeas Corpus. (Doc. 1). The Petition is construed as individual actions for habeas relief by each petitioner. See Standing Order 20-13. In his Petition, Petitioner seeks release from ICE custody due to concerns of the health risks of contracting COVID-19 and the prison's ability to prevent the spread of COVID-19 within the facility. For the reasons below, I will recommend the Petition (Doc. 1) be denied and dismissed without prejudice.

II. FACTUAL BACKGROUND & PROCEDURAL HISTORY

On September 24, 2020, ten (10) individuals currently detained by ICE at York County Prison filed a joint Petition under 28 U.S.C. § 2241 seeking immediate release from custody due to the risk of severe illness in the prison setting posed by the COVID-19 pandemic. (Doc. 1). Along with the Petition, a document titled "Motion to Expedite" was filed. (Doc. 4). The joint Petition (Doc. 1) and Motion to Expedite (Doc. 4) were docketed separately, with a unique case number being assigned to each Petitioner. See Standing Order 20-13. Then, an Order was issued directing each Petitioner to either pay the required filing fee or file a motion seeking leave to proceed in forma pauperis. (Doc. 2).

On October 7, 2020, Petitioner paid the filing fee. 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 spread of the virus—specifically at York County Prison. Petitioner, a native and citizen of Russia, alleges in his Petition that he "takes medication For COVID-19 as he tested Positive and has Hernia in stomach. Always have pain in his hernia and because of which he has visited Doctor outside the Prison Multiple Times. And now because of COVID-19 he is unable to visit the doctor again for Surgery." (Doc. 1, ¶ 22(a)). Petitioner tested positive for COVID-19 on August 26, 2020, and he later tested negative on September 21, 2020. (Doc. 8-1, Ex. 5). Petitioner is thirty-five (35) years old. Id. Healleges that his medical conditions expose him to "an imminent risk of death or serious injury if exposed to COVID-19." (Doc. 1, ¶ 22). As relief, Petitioner requests immediate release from ICE custody.

On October 9, 2020, I issued a Show Cause Order (Doc. 6), setting forth an expedited briefing schedule. On October 16, 2020, Respondent filed a Response. (Doc. 8). On October 30, 2020, Petitioner filed a Traverse replying to Respondent's Response. (Doc. 9). This matter is now ripe for disposition.

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 to seek habeas relief.

IV. DISCUSSION

A. DUE PROCESS

Petitioner is detained pursuant to 8 U.S.C. § 1231(a).³ Under this statute, "The Attorney General shall remove [an] alien [subject to an order of removal] from theUnited States within a period of 90 days." 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.

(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.

8 U.S.C. § 1231(a)(1)(B). After the 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.

In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court recognized six months as a "presumptively reasonable period" of post-final-order detention under Section 1231(a)(6). Zadvydas, 533 U.S. at 688-89, 701. "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 v. Warden York Cty. Prison, 905 F.3d 208, 214 (3d Cir. 2018), the United States Court of Appeals for the Third Circuit further concludedthat "an alien detained under § 1231(a)(6) is generally entitled to a bond hearing after six months (i.e., 180 days) of custody." Guerrero-Sanchez, 905 F.3d 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 . . . '[i]f the 180-day threshold has been crossed, but the alien's release or removal is imminent ... [then] the government [is not] required to afford the alien a [bond] hearing before an immigration judge.'" Id. at 226 n.15 (quoting Diouf v. Napolitano, 634 F.3d 1081, 1092 n.13 (9th Cir. 2011)). This exception is "narrow" and does not apply if "detention 'is expected to continue more than minimally beyond six months.'" Id. (quoting Diouf, 634 F.3d at 1092 n.13).

Here, Petitioner has been in ICE custody since March 5, 2020. (Doc. 8-1, Ex. 3, John Foster Decl. ¶ 2). Petitioner was admitted to the United States as a visitor in 2008, with authorization to remain not more than six (6) months. (Doc. 8-1, Ex. 1). On December 24, 2012, Petitioner was served with a Notice to Appear and charged as removable under Section 237(a)(1)(B) of the Immigration and Nationality Act because he remained in the United States longer than permitted. (Doc. 8-1, Ex. 2). On April 19, 2017, an Immigration Judge issued an in absentia removal order removing Petitioner to Russia. (Doc. 8-1, Ex. 4, p. 2). Petitioner did not appeal the order, which therefore became final on May 19, 2017. (Doc. 8-1, Ex. 3, ¶ 4).

On August 10, 2019, Petitioner was arrested in Pennsylvania for Strangulation, Criminal Mischief, Aggravated Assault, Disorderly Conduct, and Harassment, and ICE placed a detainer on him. (Doc. 8-1, Ex. 1, p. 2). On March 5, 2020, Petitioner was convicted of only Harassment and sentenced to one year of probation. Id. He was taken into ICE custody that day. (Doc. 8-1, Ex. 3, ¶ 2).

ICE has taken steps to remove Petitioner since he entered ICE custody. On April 2, 2020, ICE's Enforcement and Removal Operations ("ERO") sent a travel document request package to Removal and International Operations ("RIO") for assistance in obtaining Petitioner's travel document from the Embassy of Russia. Id. at ¶ 6. On June 24, 2020, ERO requested assistance from RIO headquarters in obtaining Petitioner's travel document. Id. ¶ 7. On July 22, 2020, the Embassy of Russia contacted ICE requesting additional information about Petitioner's family. Id. ¶ 8. On August 20, 2020, ICE provided the Embassy of Russia with the requested information. Id. ¶ 9. On October 5, 2020, Petitioner was given a new Russian passport application because his initial application was illegible. Id. ¶ 10. ICE has ensured that Petitioner's new passport application will be legible. Id. ¶ 11.

ICE reviewed Petitioner's custody status on August 31, 2020, as required by 8 C.F.R. § 241.4, and decided to continue custody "on the ground that petitioner's criminal history supports the conclusion that he poses a danger to society and/or risk of flight and on the expectation that a travel document will be issued." (Doc. 8-1,Ex. 3, ¶ 12). ICE "anticipate[s] that petitioner's removal from the United States is imminent upon his submission of his readable passport application." Id. at ¶ 13.

Petitioner's detention, which began on March 5, 2020, has extended beyond the "presumptively reasonable" six-month post-final-order period set forth in Zadvydas, 533 U.S. at 701, and Guerrero-Sanchez, 905 F.3d at 226. Therefore, if Petitioner 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." See Zadvydas, 533 U.S. at 701.

In his traverse, Petitioner states that "it is less likely that Russia will provide [a] Travel document for him as his family was against the government in Russia." (Doc. 9, p. 1). He states that "he should not be punished for the only reason that ICE is unable to get Travel Document from his Country." Id. at ¶ 3.

Conclusory allegations 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."); see also Rosas v. Doll, No. 1:20-CV-00716, 2020 WL 3172770, at *3 (M.D. Pa. June 15, 2020) (rejecting Zadvydas claim of petitioner detained eight (8) months, noting petitioner provided no evidence to support claim that pending appeal of denial of withholding or deferral of removal would likely be remanded for further proceedings); DonMartin v. Lowe, No. 1:17-cv-1766, 2017 WL5990114, at *2 (M.D. Pa. Dec. 4, 2017) (denying relief under Zadvydas to detainee because argument that "his removal [was] unlikely because it ha[d] not yet occurred" did not meet Zadvydas standard). While Petitioner here claims that Russia is "less likely"...