United States District Court, N.D. California
February 26, 2004.
SAM ATH NHIM, Petitioner,
JOHN ASHCROFT, etc.; et al., Respondents
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
The petition for writ of habeas corpus is dismissed without prejudice
to refiling if petitioner's detention pending removal exceeds six months.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL
Petitioner, an alien detained by the Bureau of Immigration and Customs
Enforcement ("BICE") at a facility in Oakdale, Louisiana, has filed a
pro se petition for a writ of habeas corpus under
28 U.S.C. § 2241. Petitioner alleges that he was taken into custody by BICE
after he completed a prison sentence for armed robbery and placed in
detention pending removal. He alleges that the removal order became final
on September 5, 2003 but he is not removable. He allegedly is not
removable because his country of origin, Cambodia, will not accept him
due to a documentation problem (i.e., his identity was never established
before he left Cambodia at the age of 2; consequently Cambodia does not
recognize him as a Cambodian citizen and will not issue the necessary
travel documents to effectuate his removal). He claims that his continued
detention pending removal is illegal because it has exceeded 90 days and
it is clear that he will not be deported in the foreseeable future.
The government may not indefinitely detain an alien where his native
country will not accept him if he is removed. Zadvydas v.
Davis, 121 S.Ct. 2497-98, 2503 (2001). Once removal is no longer
reasonably foreseeable, continued detention is no longer authorized by
statute. Id. However, there is a presumption that it is
reasonable to detain an alien for up to six months. Id. at
2505. After six months, there is a rebuttable presumption that detention
is unreasonable. Id.
Petitioner has not been in BICE custody for more than six months and
therefore is within the period where his continued detention is presumed
reasonable. His petition is premature. The petition for writ of habeas
corpus is DISMISSED without prejudice to refiling if petitioner's
detention pending removal exceeds six months.
The in forma pauperis application is DENIED as moot because
petitioner paid the filing fee. (Docket #2.)
The clerk shall close the file.
IT IS SO ORDERED.
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