Moses v. Lynch

Zakka Moses, Petitioner, v. Loretta Lynch, Attorney General; Jeh Johnson,Secretary of the Department of Homeland Security; Jason Sieving, U.S. ICE,Field Office for the St. Paul Filed Office;and Warden of Immigration Detention Facility; Respondents.

No. 15-cv-4168 (PAM/JJK)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

April 12, 2016

REPORT AND RECOMMENDATION

Nixon Ayeni, Esq., Law Office of Nixon Ayeni, counsel for petitioner.

Ana H. Voss, Esq., Chad A. Blumenfield, Esq., and D. Gerald Wilhelm, Esq., Assistant United States Attorneys, counsel for respondents.

JEFFREY J. KEYES, United States Magistrate Judge

In this proceeding, the petitioner Zakka Moses, a native and citizen of Nigeria, seeks a writ of habeas corpus. Moses asks the Court to direct the respondents to immediately release him from custody and he seeks a preliminary and permanent injunction prohibiting the respondents from detaining him unlawfully in the future. (Doc. No. 1, Pet., Prayer for Relief ¶¶ 2-3.) Moses has been in the custody of immigration officials since May 22, 2014, pending his removal from the United States. He asserts that he is in custody in violation of the laws of the United States because the Office of Immigration and Customs Enforcement ("ICE") has been unable to remove him to Nigeria, his removal from the United States is not likely to occur in the reasonably foreseeable future, and his continued custody has exceeded the presumptively reasonable six-month period approved by the Supreme Court for pre-removal detention of aliens in Zadvydas v. Davis, 533 U.S. 678 (2001). (Pet. 4-6.) The respondents assert that the only reason Moses is still in the United States is that he has "intentionally frustrated his removal" by refusing to comply with law enforcement officials' commands and behaving confrontationally and aggressively during previous attempts to remove him to Nigeria. (Doc. No. 11, Resp. to Pet. 1-2.) For the reasons that follow, the Court recommends that Moses's habeas petition be denied.

BACKGROUND

On May 22, 2014, ICE took Moses into custody. (Pet. ¶¶ 6, 11; Doc. No. 12, Robinson Decl. ¶ 4.) The next day, ICE served him with a notice to appear before an immigration judge. (Robinson Decl. ¶ 4.) On November 10, 2014, the immigration judge ordered Moses removed from the United States. (Pet. ¶ 11; Robinson Decl. ¶ 6.) The Board of Immigration Appeals in the Executive Office for Immigration Review ("BIA") dismissed his appeal of the immigration judge's removal order on March 12, 2015. (Robinson Decl. ¶¶ 6-7.) On March 19, 2015, Scott Baniecke, an ICE Field Office Director, issued a warrant for Moses's removal and deportation, and ICE sent a formal request to Nigeria for a travel document for Moses. (Id. ¶¶ 8-9.) The next day, ICE sent Moses a "Warning for Failure to Depart" in which ICE warned Moses that he might face criminal consequences if he refused to comply with efforts to remove him to Nigeria. (Id. ¶ 10.)

ICE had not received a travel document for Moses from Nigerian authorities by June 10, 2015, so ICE served him with a custody-review decision that explained ICE would continue to hold Moses in custody beyond the expiration of a 90-day removal period. (Robinson Decl. ¶ 11.) ICE made additional efforts to obtain a travel document from Nigeria in July and September of 2015. (Id. ¶ 12.) The Nigerian Embassy sent ICE a valid travel document for Moses on November 18, 2015. (Id. ¶ 15.)

Moses filed his habeas petition on November 25, 2015. (Pet.; Robinson Decl. ¶ 16.) Shortly after it received the valid travel document, on December 1, 2015 ICE attempted to remove Moses to Nigeria. (Robinson Decl. ¶ 17.) ICE took Moses to the Minneapolis-St. Paul Airport ("MSP"), but Moses "began yelling at officers and became belligerent at the ticket counter at the MSP airport. [He] refused to comply with ICE officers and MSP Airport Police's requests that he lower his voice. [He] demanded to talk with his lawyer, mother, and stated that he would not go back to Nigeria." (Id. ¶ 18.) ICE ceased its efforts to remove Moses on December 1, 2015 in response to his behavior at the airport. (Id.)

After the incident at the MSP Airport, ICE served Moses with another warning for failure to comply with efforts to deport him. (Id. ¶ 19.) ICE tried to deport Moses again on December 15, 2015, but again he refused to go to Nigeria. (Id. ¶¶ 20-22.) Moses told officers "that he would not go back to Nigeria until he saw a federal judge," that he would not see a specific judge identified as "Judge Nickerson," and that the officers "shouldn't bother even trying to take him to the airport because he was not going to Nigeria." (Id. ¶ 21.) "On December 15, 2015, three different officers attempted to speak with M[oses]. During each attempt, [Moses] was confrontational and spoke aggressively[, and] [t]he removal mission [that day] was aborted." (Id. ¶ 22.)

There is no indication in the record that ICE has been able to remove Moses from the United States since December 15, 2015.

DISCUSSION

I. Legal Standard

"[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody."Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). "Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions." 28 U.S.C. § 2241(a). However, "[t]he writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A writ of habeas corpus under 28 U.S.C. § 2241 is a proper method for challenging the lawfulness of continued detention by immigration authorities pending removal of an alien. Zadvydas v. Davis, 533 U.S. 678, 699 (2001).

II. Analysis

A. Moses has failed to meet his burden to show that he is in custody in violation of Zadvydas v. Davis

Citing 8 U.S.C. § 1231(a)(6) and Zadvydas v. Davis, 533 U.S. 678 (2001), Moses first argues that he must be released from custody pending his removal because he has been detained for longer than six months and the government has not shown that it is significantly likely to remove him in the reasonably foreseeable future. (See Pet. ¶¶ 21-25.)

Section 1231 of Title 8 of the United States Code establishes a "removal period" within which the Attorney General must remove aliens subject to an order of removal. It states: "Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days . . . ." 8 U.S.C. § 1231(a)(1)(A). However, an alien's detention beyond that 90-day removal period may be permitted according to federal immigration law. For example, under 8 U.S.C. § 1231(a)(6), the Attorney General may detain certain removable aliens beyond the 90-day removal period, or release such aliens under terms of supervision. Id. (providing for additional post-removal-period detention of an alien who is removable for failing to maintain admissible nonimmigrant status,violating conditions of entry, committing certain crimes, engaging in conduct that threatens national security, or whose release would present a risk to the community).

The Attorney General's power to extend detention beyond the 90-day removal period under § 1231(a)(6) is not limitless. The Supreme Court has held that § 1231(a)(6) does not authorize indefinite detention of an alien. Zadvydas, 533 U.S. at 689. Immigration officials may detain an alien beyond the removal period for "a period reasonably necessary to bring about that alien's removal from the United States." Id. In Zadvydas, the Court determined that a removable alien's detention is presumptively reasonable under § 1231(a)(6) for six months after the alien is ordered removed. Id. at 701. If the alien is not removed within that six-month period, he can secure his release by meeting his burden to "provide good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future . . . ." Id. If the alien meets that burden, then the government must present evidence "sufficient to rebut that showing." Id.

Zadvydas did not address another statute that authorizes continued detention of an alien beyond the 90-day removal period. Section 1231(a)(1)(C) provides that: "[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 . . . conspires or acts to prevent the alien's removal subject to an order of removal." "Subsequent to Zadvydas, numerous courts have held that, when an alien refuses to cooperate in securing his removal, he can be detained under § 1231(a)(1)(C) for longer than the six-month period that Zadvydas established as presumptively reasonable under § 1231(a)(6)." Hydara v. Gonzales, No. 07-cv-0941 PJS/JSM, 2007 WL 2409664, at *2 (D. Minn. Aug. 21, 2007), aff'd sub nom. Hydara v. Doe, 324 Fed. App'x 534 (8th Cir. 2009). "These courts have assumed that Zadvydas applies to aliens being detained under§ 1231(a)(1)(C) and reasoned that, when an alien obstructs his removal, he cannot meet his burden of showing that there is no significant likelihood of removal in the reasonably foreseeable future." Id. (citing Lema v. INS, 341 F.3d 853, 856 (9th Cir. 2003); Pelich v. INS, 329 F.3d 1057, 1059-61 (9th Cir. 2003); Davis v. Gonzales, 482 F. Supp. 2d 796, 800-01 (W.D. Tex. 2006); Powell v. Ashcroft, 194 F. Supp. 2d 209, 212 (E.D.N.Y. 2002)). "The reasoning is that, where the timing of removal is controlled by an uncooperative alien rather than immigration officials, there is no meaningful way to ascertain the likelihood of removal." Ndenge v. Gonzales, No. Civ. 07-1726 MJD/JJG, 2008 WL 682091, at *2 (D. Minn. Mar. 6, 2008) (citing Lema, 341 F.3d at 856-57; Hydara, 2007 WL 2409664; an...