Meighan v. Sabol

PHILIP ANDREW MEIGHAN, Petitioner, v. MARY SABOL, et al., Respondents

CIVIL NO. 1:16-CV-2560

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

February 17, 2017

(Judge Kane)

(Magistrate Judge Carlson)

REPORT AND RECOMMENDATION

I. Statement of Facts and of the Case

This case involves a habeas corpus petition filed by an immigration detainee and previously convicted drug trafficker, Philip Meighan. Meighan is a citizen and native of Belize who entered the United States unlawfully without inspection by an immigration officer, and was convicted of conspiracy to distribute PCP in August of 2007. (Doc. 7, Exs. 1 and 2.) Following this conviction, on June 23, 2009, immigration officials issued a Notice of Intent to Issue a Final Administrative Removal Order which charged that Meighan was subject to removal from the United States due to his prior drug trafficking conviction.(Id., Ex. 2.) In February of 2016, immigration officials took Meighan into custody following the completion of his criminal sentence (Doc. 1.) After a series of administrative proceedings before an Immigration Judge, on January 10, 2017, Meighan was ordered removed, but the Immigration Judge granted Meighan withholding of removal under the Convention Against Torture, and the Government has elected not to further challenge this order. ( Doc. 7, Ex 5.) The practical import of this action is that Meighan is now subject to a final order of removal under the Immigration and Naturalization Act, but may not be removed to Belize, his nation of origin, due to the Convention Against Torture finding. Meighan may, however, be removed to any other nation which is willing to accept him. See generally Madjakpor v. Gonzales, 406 F.3d 1040, 1042 (8th Cir. 2005).

While these proceedings were on-going, on December 29, 2016, Meighan filed a petition for writ of habeas corpus with this court, seeking release from immigration custody. Meighan also filed a motion for preliminary injunction, (Doc. 3), which sought extraordinary relief in the form of an order directing his forthwith release from immigration custody. The Respondents have addressed this petition, and motion for preliminary injunction, (Doc. 7), and this case is now ripe for resolution.

Given the present status of these proceedings, which involve an alien who is now subject to a final order of removal entered in January of 2017, we find that the current, brief period of post-removal detention does not violate due process and therefore recommend that the Court deny this petition at this time without prejudice to renewal of this claim, if warranted, at an appropriate future time. We also find that Meighan hasnot made the exacting showing that is necessary to secure a preliminary injunction directing his release from custody and recommend that his motion for preliminary injunction be denied.

II. Discussion

A. Meighan's Current Post-Removal Detention Does Not Raise Constitutional Concerns

In this case, Meighan's order of removal became final in January of 2017, when he was ordered removed but had his removal deferred under the Convention Against Torture. As an alien who is now subject to a final order of removal, the petitioner's detention is governed by a set of specific statutory and constitutional rules. First, by statute, aliens like the petitioner, who are subject to final removal orders, may be detained under 8 U.S.C. § 1231(a), which directs the Attorney General to remove such aliens within 90 days of the entry of a removal order. 8 U.S.C. § 1231(a)(1)(A). The statute then commands that "[d]uring the removal period the Attorney General shall detain the alien", 8 U.S.C. § 1231(a)(2), and with respect to criminal aliens like the petitioner specifically provides that: "Under no circumstance during the removal period shall the Attorney General release an alien who has been found ...deportable under section 1227(a)(2) ... of this title." 8 U.S.C. § 1231(a)(2). For purposes of our analysis of any post-final order period of detention, this statutory ninety-day "removal period" during which detention is mandatory begins on the date the order of removalbecomes administratively final, in this case January of 2017. See 8 U.S.C. § 1231(a)(1)(B)(I).

In the instant case, Meighan has currently been held for approximately 40 days since his removal order became administratively final, a term of post-final order of removal detention which is not only authorized by law, but is actually compelled by the statute. 8 U.S.C. § 1231(a)(2). While this detention is expressly authorized by statute, aliens, like Meighan, who are the subject of final removal orders are also entitled to certain due process protections. For aliens awaiting removal, like the petitioner, the contours of those due process rights are defined by the United States Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas, the United States Supreme Court extended due process protections to aliens awaiting removal from the united States, while generally sustaining the validity of the initial mandatory detention period for such aliens during the ninety-day removal period prescribed by 8 U.S.C. § 1231(a)(1)(A). Beyond this initial 90-day period the Court concluded that: "we think it practically necessary to recognize some presumptively reasonable period of detention." Id. at 701.

The Court then observed that:

While an argument can be made for confining any presumption to 90 days, we doubt that when Congress shortened the removal period to 90 days in 1996 it believed that all reasonably foreseeable removals could be accomplished in that time. We do have reason to believe, however, that Congress previously doubted the constitutionality of detention for morethan six months . . . . Consequently, for the sake of uniform administration in the federal courts, we recognize that period. 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. And for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink. This 6-month presumption, of course, 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. at 701.

Taken together, 8 U.S.C. § 1231(a)(1)(A) and Zadvydas create a statutory and constitutional framework for protecting the rights of aliens who are detained pursuant to administratively final removal orders. Under this framework, such aliens shall be detained for the first 90 days of the removal period and further detention beyond this 90-day period will be presumed reasonable up to a period of 6 months, at which time aliens subject to final removal orders must either be removed, or be given bail consideration.

However, when calculating these detention periods for purposes of analyzing post-removal delay claims brought by immigration detainees two principles must be kept in mind. First, delays attributable to the recalcitrance of the immigration detainee, and his refusal to cooperate with immigration officials, are not to be considered by the courts in making these determinations regarding whether a detainee has experiencedexcessive delays in deportation. Thus, where an alien refuses to cooperate with the authorities in affecting his removal he cannot cite the delay in removal which he caused as grounds for habeas relied. As this court has observed:

[A]n "alien cannot assert a viable constitutional claim when his indefinite detention is due to his failure to cooperate with the INS's efforts to remove him." Pelich v. I.N.S., 329 F.3d 1057, 1061 (9th Cir.2003). In [such] a case, the Court[s] determined that the continued detention of the alien was due to his own conduct: . . . Thus, the [court] has interpreted INA § 241(a)(1)(C) after Zadvydas to permit continued detention of a removable alien "so long as the alien fails to cooperate fully and honestly with officials to obtain travel documents." Lema v. INS, 341 F.3d 853, 857 (9th Cir.2003). Similarly, district courts to consider this issue ask whether the petitioner has the "keys to his freedom," Pelich, 329 F.3d at 1060, to determine whether he is preventing his own removal pursuant to INA § 241(a)(1)(C). See, e.g., Clark v. Ashcroft, No. 03-3320, 2003 WL 22351953 at *3-4 (E.D.Pa. Sept. 16, 2003)(alien initially misrepresented his country of origin, but later gave his true name and identity; the government showed no evidence of non-cooperation since that time); Rajigah v. Conway, 268 F.Supp.2d 159, 165-66 (E.D.N.Y.2003) (finding no bad faith failure to cooperate where alien made truthful statements to Guyanese ambassador regarding his intent to file another court action, which the government considered failure to comply); Seretse-Khama v. Ashcroft, 215 F.Supp.2d 37, 51-53 (D.D.C.2002) (alien's truthful statements to Liberian officials that he did not wish to return to Liberia did not amount to bad faith failure to cooperate since it was not the reason for failure to issue travel documents; rather, it was their concern for his lack of ties to that country); Powell v. Ashcroft, 194 F.Supp.2d 209, 210 (E.D.N.Y.2002) (repeated inconsistencies regarding alien's identity "demonstrably hampered the INS in carrying out his removal"). Thus, this Court must carefully examine the record to determine Petitioner's part in his continued detention.

Abdel-Muhti v. Ashcroft, 314 F.Supp.2d 418, 427-28 (M.D.Pa.,2004).

In addition, cases construing Zadvydas recognize that the presumptivelyreasonable six-month detention period described by the Supreme Court is just that-a presumptively reasonable period of detention. It is...