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Iddrisu v. Kelly

United States District Court, C.D. California

March 27, 2017

MOHAMMED IDDRISU, Petitioner,
v.
JOHN F. KELLY, et al., Respondents.

          ORDER DENYING HABEAS PETITION (28 U.S.C. § 2241) AND DISMISSING ACTION WITHOUT PREJUDICE

          ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         On January 9, 2017, petitioner filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody (28 U.S.C. § 2241). Petitioner, a detainee at the Theo Lacy Facility in Orange, California, has been detained since March 2016 pending his removal from the United States. In his sole ground for federal habeas relief, petitioner claims that he should be released from detention with reasonable conditions because there is no significant likelihood of removal in the reasonably foreseeable future.

         The parties have consented to the jurisdiction of the undersigned Magistrate Judge under 28 U.S.C. § 636(c). As discussed below, the Petition is denied. However, the dismissal of this action is without prejudice to petitioner refiling a habeas petition in this Court if it later appears that removal is no longer reasonably foreseeable.

         BACKGROUND

         Petitioner is a native and citizen of Ghana. On September 16, 2015, petitioner applied for admission to the United States without valid documentation at the San Ysidro Port of Entry in San Diego, California. (ECF No. 8-1 at 2.) He was processed for expedited removal, and was taken into the custody of Immigration and Customs Enforcement (“ICE”) on September 25, 2016. (Id.) An immigration judge issued an order of removal that became final on March 28, 2016. (Id.) Petitioner remains in detention since that date.

         On January 9, 2017, petitioner filed this Petition because he had been detained for more than six months since his removal order became final on March 28, 2016. (ECF No. 1.) Petitioner's claim is based on Zadvydas v. Davis, 533 U.S. 678, 701 (2001), in which the Supreme Court held that a presumptively reasonable period of detention in order to effectuate removal from the United States was six months.

         On February 9, 2017, respondent filed an Answer which included a declaration by David Scarberry, a deportation officer familiar with petitioner's case. (ECF No. 8.) According to Officer Scarberry's initial declaration, on January 26, 2017, officials for ICE requested an interview of petitioner (and others) for travel documents to Ghana, and the Consulate General of Ghana committed to conducting the interviews within 30 days. (ECF No. 8-1 at 2.)

         On March 6, 2017, petitioner filed a Reply stating, in part, that relief should be granted because there had been no definitive answer from the target country after several months as to whether it would issue travel documents. (ECF No. 10 at 5.)

         On March 9, 2017, the Court ordered respondent to file an updated statement. On March 23, 2017, respondent filed a statement which included a second declaration by Officer Scarberry. (ECF No. 13.) According to that declaration, the Consul General of Ghana advised by an email dated on March 14, 2017, that a travel document for petitioner would be issued within a month. (ECF No. 13-1 at 2.) Once the travel document is issued, according to Officer Scarberry, removal should take place in about a month. (Id.)

         DISCUSSION

         Post-removal-order detention is governed by 8 U.S.C. § 1231(a). Section 1231(a)(1) requires the Attorney General to attempt to effectuate removal within a 90-day “removal period.” During the removal period, the alien must be detained. 8 U.S.C. § 1231(a)(2). Under 8 U.S.C. § 1231(a)(1)(B), the removal period begins on the latest of the following:

(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of ...

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