Nma v. Ridge, CIV.A. 03-3446.

286 F.Supp.2d 469

Chris Gisto NMA Petitioner, v. Tom RIDGE, Hon., Secretary, Homeland Security, et al., Respondents.

No. CIV.A. 03-3446.

United States District Court, E.D. Pennsylvania.

October 3, 2003.

Chris Gisto Nma, Berks County Prison, Leesport, PA, pro se.

Matthew D. Baxter, Law Offices of Bespalov & Avrutsky, P.C., Huntingdon Valley, PA, for Chris Gisto Nma, Petitioner.

Paul G. Shapiro, U.S. Attorney's Office, Philadelphia, PA, for Tom Ridge, Hon., Secretary, Homeland Security, William F. Riley, Jr., Interim District Director, Bureau of Immigration & Customs, Respondents.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

INTRODUCTION

The petitioner, Chris Gisto Nma, is a citizen of Liberia who arrived in New York in October of 1990 as a stowaway. Petitioner is currently detained pending deportation from the United States to Liberia pursuant to a final order of removal. Defendants are the Honorable Tom Ridge, Secretary of the Department of Homeland Security, and William F. Riley, Jr., Interim District Director of the Bureau of Immigration and Customs¹ (the "Government"), who are responsible for petitioner's detention. Presently before the court is petitioner's request for a writ of habeas corpus challenging the Government's authority to detain him in aid of his removal from the United States. For the reasons that follow, the request for the issuance of the writ will be denied.

I. BACKGROUND

Petitioner filed an Application for Asylum and Withholding of Deportation with the Immigration and Naturalization Service ("INS") in April of 1992. On May 17, 1995, while the Application for Asylum was pending, Nma was arrested for conspiracy to obtain fraudulent immigration documents. Nma later pled guilty to the conspiracy charge and was sentenced to 5 months/time served. On December 29, 1995, Nma was returned to INS custody after completing his federal sentence.

On August 1, 1995, the INS charged Nma with having entered the U.S. unlawfully and having been convicted of a felony. Based on the charge, the INS sought Nma's removal from the United States. On August 25, 1996, an Immigration Judge denied the petitioner's Asylum Application and ordered Nma deported to Liberia. The Immigration Judge also denied Nma's request for bond, concluding that Nma was a flight risk and a danger to the community at large. On April 24, 1997, the Board of Immigration Appeals (BIA) dismissed Nma's appeal of the Immigration Judge's denial of his petition for asylum and the order for Nma's removal became administratively final on that date.

On June 2, 1997, a travel document for Nma's removal was issued by the Liberian authorities.² However, although the Government was authorized to deport the petitioner at that time (because there was no stay of removal in place), in light of Nma's appeal to the BIA to reopen its dismissal of his previous appeal, the Government made an administrative decision not to do so at that time, and Nma remained in INS custody. On August 17, 1999, after all of his appeals were exhausted, petitioner was released under an order of supervision on a $7500 bond.

On October 24, 2002, Nma reported to INS offices in New York for a review of his status as required under supervised release. On November 14, 2002, he received a letter asking him to surrender to custody at INS offices in New York City. Pursuant to the request, petitioner voluntarily surrendered and was detained for removal from the U.S. On January 24, 2003, Nma was again informed that he was being considered for release and was asked to submit documents in support of his release. Although Nma supplied supporting documentation as requested, he was not released.

On or about May 20, 2003, while in custody, Nma wrote to the INS asking for a custody review and to be released on bond pending his removal. A custody review of Nma's case completed on July 3, 2003 concluded that Nma would not be released "until he provide[d] documentation as to his identity and citizenship or cooperate[d] fully with Embassy personnel." (See Government's Exhibit "G" at 6.)

Since Nma's return to INS custody in November of 2002, the Government has attempted to procure a travel document for Nma from the Liberian government. At first, the Liberian government refused to supply the document without proof that Nma is a Liberian citizen (i.e. a birth certificate or other proof of citizenship or nationality). Later, on August 18, 2003, the Liberian Consulate informed the government that it would, indeed, issue the travel document for Nma. In fact, by a letter dated August 26, 2003, Officer William S. Salley, Consul to the Liberian Embassy, informed the petitioner that a travel document for Nma would be issued after the Interim Government was installed in Liberia, reportedly on October 14, 2003.

Petitioner filed this petition for habeas corpus relief on June 2, 2003 along with a motion for a preliminary injunction ordering his release pending the adjudication of the writ of habeas corpus. In his petition, Nma argues that because he has been detained more than six months under a final order of removal (after the expiration of the 90-day period during which release is not permitted under the statute), and there is no significant likelihood of his removal in the foreseeable future, he should be released from detention pending his eventual removal, pursuant to the Supreme Court's opinion in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).

Petitioner bases his argument that there is no significant likelihood in the reasonably foreseeable future on the current civil unrest in Liberia. Petitioner contends that because Liberia is currently in chaos, despite the representations by the Liberian Consulate that it will issue a travel document for Nma, the issuance of a travel document in the near future is unlikely, especially considering how long it has taken for action thus far. Petitioner argues that in light of the fact that he has been detained for almost 4 years altogether awaiting removal (counting both his previous and current detention), the uncertainty of when, if ever, Liberia will issue the travel document cannot support a finding that there is a "significant" likelihood that he will be removed in the reasonably foreseeable future.

The Government responds, in the first instance, that the Supreme Court's decision in Zadvydas v. Davis, recognizing certain constitutional protections for admitted aliens against indefinite detention, does not apply to Nma because he arrived in the U.S. as a stowaway, and hence is not an "admitted" alien. Further, the Government argues that even if the protections in Zadvydas do apply to Nma, petitioner cannot meet his burden under Zadvydas because he has not been detained for six full months within which he has provided complete cooperation in obtaining a travel document, and, most importantly, because petitioner's removal is reasonably foreseeable since the Liberian government has stated that they intend to issue a travel document to the petitioner in the near future.

II. Analysis

A. Jurisdiction

The court has jurisdiction to hear this federal habeas corpus petition pursuant 28 U.S.C. § 2241 (1994). Jurisdiction extends to questions of law but does not extend to factual or discretionary determinations of the government. See 8 U.S.C. § 1252(a)(2)(B)(ii)(1994) ("[N]o court shall have jurisdiction to review" any decision or action "specified ... to be in the discretion of the Attorney General."). In his petition, Nma challenges the government's legal authority to keep him detained under the laws of the United States.

The legal question before the court is whether the Supreme Court's decision in Zadvydas v. Davis applies when an alien detainee's country of origin has agreed to take the detainee back but it is uncertain when the removal can be effectuated due to political unrest in the country of origin. The specific task at hand is to determine whether, under these circumstances, the future length of petitioner's detention in aid of removal from the U.S. may be deemed reasonably foreseeable so as to avoid the constitutional implications of indefinite or possibly permanent detention.

B. The Merits

1. Is Zadvydas applicable to Nma's detention?

In Zadvydas, the Supreme Court addressed the constitutional implications of the detention of two aliens, who had been "admitted to United States"³ but were to be deported based on criminal convictions. Zadvydas, 533 U.S. at 684-85, 121 S.Ct. 2491. Because no country would accept the aliens' repatriation, their detention by the INS in aid of removal from the U.S. was indefinite and potentially permanent. Id. at 685-86, 691, 121 S.Ct. 2491. Finding the aliens' indefinite detention constitutionally problematic, the Court construed the relevant immigration statute authorizing post-removal-period detention, 8 U.S.C. § 1231(a)(6), to require that detention in those situations be limited to a period reasonably necessary to secure removal. Id. at 699, 121 S.Ct. 2491. For the sake of uniform administration, the Court recognized that a 6-month post-removal-period detention would be presumptively reasonable under the statute. Id. According to the Court, permitting indefinite detention of aliens, would raise "a serious constitutional problem." Id. at 690, 121 S.Ct. 2491.

Zadvydas involved admitted aliens. The petitioner in this case is not an admitted alien, but rather was found illegally in this country. The threshold issue is thus, does the Zadvydas teachings apply equally to aliens illegally found in the United States.

Courts are divided on the issue of whether Zadvydas is limited to admitted aliens. The majority of courts have construed the constitutional protections in Zadvydas to apply only to aliens that have been properly admitted into the United States. See, e.g., Borrero v. Aljets, 325 F.3d 1003 (8th Cir.2003); Rios v. INS 324 F.3d 296 (5th Cir.2003) (per curiam); Hoyte-Mesa v....