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Hashi v. Chertoff

January 15, 2008


The opinion of the court was delivered by: William Q. Hayes United States District Judge


HAYES, Judge:

The matter before the Court is the Petition for Writ of Habeas Corpus (Doc. # 1) filed by Petitioner Isaac Abdi Hashi.


Petitioner is a native and citizen of Somalia. Petition, p. 2. In 1993, Petitioner entered the United States as a refugee and later adjusted to lawful permanent resident status. Id. at 2-3. On February 23, 2004, Petitioner was convicted of carjacking and sentenced to three years in prison. Id. at Exhibit 3. Upon release from prison, U.S. Immigration and Customs Enforcement ("ICE") placed Petitioner in removal proceedings in Florence, Arizona where an Immigration Judge ordered him removed to Somalia. On February 8, 2007, the order of removal became final. Id.

On September 11, 2007, Petitioner filed a Petition for Writ of Habeas Corpus ("Petition"), pursuant to 28 U.S.C. § 2241. (Doc. #1). Petitioner alleges in the Petition that his detention is unlawful because he has been detained beyond the presumptively reasonable period of six months after his removal order became final, and there is no significant likelihood that he will actually be removed to Somalia in the reasonably foreseeable future. See Zadvydas v. Davis, 533 U.S. 678, 701 (2001). Petitioner moves the Court to issue a writ of habeas corpus directing Respondents to release him from custody.

On October 12, 2007, Respondents filed a Return in Opposition to Petition for Writ of Habeas Corpus ("Return"). (Doc. # 17). Respondents oppose the Petition on grounds that Petitioner will be removed to Somalia in the reasonably foreseeable future. Return, p. 3. In support of this assertion, Respondents submit the Declaration of Deportation Officer Tomas Curi, who attests that "ICE is presently arranging the details of Mr. Hashi's removal for the purpose of effecting his removal within thirty days." Id. atExhibit 1. Respondents contend that the "extended time required for planning Hashi's removal has been due to the delay in discovering his extraordinary danger to the community, the need to obtain spending authority for a removal operation that will cost well into six figures, the need to contract for charter flight services, and the need to plan an itinerary which involves, among other things, the need to obtain clearances from the governments of transit countries." Id. at 3.

On November 19, 2007, Petitioner filed a Traverse. (Doc. # 21). Petitioner contends that Respondents' assertion that his removal to Somalia is likely in the reasonably foreseeable future is contrary to the history of [Respondent's] dealings with Mr. Hashi in this case, contrary to the warzone conditions in Somalia making safe deportation impossible, contrary to [Respondents'] failed attempts to deport the most well-known Somali in this country [see discussion of Jama v. ICE, 2005 U.S. Dist. LEXIS 9725, below] and contrary to the consistent decisions by U.S. courts that Somali aliens must be released from detention because their imminent removal is unlikely.

Traverse, p. 12, 13. Petitioner contends that Respondents have "had a reasonable and appropriate opportunity to remove Mr. Hashi for the last nine months with no success," and that Respondents "adduce nothing to show that removal is indeed reasonably imminent." Id. at 13.

Applicable Law

8 U.S.C. section 1231 governs the detention and removal of aliens subject to final orders of removal. Pursuant to section 1231(a)(1), once 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). Section 1231(a)(3) provides that if the alien is not removed within this 90 day removal period, the alien, pending removal, shall be subject to supervision under regulations prescribed by the Attorney General. Section 1231(a)(6) provides that an alien subject to a final order of removal "who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond" the 90 day removal period. 8 U.S.C. § 1231(a)(6).

The authority under section 1231(a)(6) to detain an alien beyond the 90 day removal period is not absolute. If, after six months of post-removal detention, an "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." Zadvydas, 533 U.S. at 701. The Supreme Court rejected the contention that continued detention is lawful as long as "good faith efforts to effectuate . . . deportation continue," and concluded that "this standard would seem to require an alien seeking release to show the absence of any prospect of removal - no matter how unlikely or unforeseeable - which demands more than our reading of the statute can bear." Id. at 702. As the "period for confinement grows, what counts as the 'reasonably foreseeable future' conversely would have to shrink." Id.

[I]f removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized by statute. In that case, of course, the alien's release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and that the alien may no doubt be returned to custody upon a violation of these conditions. And if removal is reasonably foreseeable, the habeas court should consider the risk of ...

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