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Abdalla v. Johnson

United States District Court, E.D. Michigan, Southern Division

January 24, 2017

JEH JOHNSON, et al., Respondents.


          Denise Page Hood Chief Judge, United States District Court


         On December 21, 2016, Petitioner Ramzi Mohamed Abdalla (“Abdalla”) filed the instant Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241. (Doc # 1) On December 21, 2016, the Court issued an Order Directing Service and Response and staying the removal of Abdalla. (Doc # 4) On January 10, 2017, the Government filed a Response (Doc # 6), and the Court held a Motion Hearing on January 19, 2017. Abdalla filed a Reply on January 19, 2017 (Doc # 12), and the Government filed a Supplemental Brief on January 23, 2017 (Doc # 13).

         Abdalla is a native and citizen of Somalia. (Doc # 1, Pg ID 10-11; Doc # 1-1, Pg ID 18-21) On November 16, 2015, Abdalla presented himself at the Hidalgo, Texas port of entry seeking asylum. (Doc # 6-1, Pg ID 56) The United States Citizenship and Immigration Services (“USCIS”) Chicago Asylum Office determined that Abdalla expressed a credible fear of persecution in Somalia. Id. USCIS issued a Notice to Appear in immigration court in Detroit so that Abdalla could seek asylum before an immigration judge. Id. On April 14, 2016, the immigration judge granted Abdalla's application for asylum from the country of South Africa and denied all other applications for relief and protection. Id.; Doc # 1-1, Pg ID 16. The Government then filed a motion for reconsideration, arguing that the immigration judge lacked authority to grant Abdalla asylum from South Africa. (Doc # 6-1, Pg ID 56) Subsequently, the immigration judge vacated the prior decision and issued a new order denying asylum and all other applications for relief, as well as ordering Abdalla removed to Somalia under 8 U.S.C. § 1182 as an inadmissible alien. (Doc # 1-1, Pg ID 17) Abdalla reserved appeal, but he subsequently informed the immigration court that he wished to waive his right to appeal the decision. Id., Doc # 1-6, Pg ID 56. The immigration court issued its amended order with an effective date of May 10, 2016, noting that both parties waived appeal-making it a final order of removal. (Doc # 1-6, Pg ID 56)

         Abdalla has been detained in the custody of the U.S. Immigration and Customs Enforcement (“ICE”) for more than a year since he presented himself in this country seeking asylum, and he has been at the Monroe County Jail for more than eight months since the entry of his final order of removal. (Doc # 1, Pg ID 11) On August 12, 2016, Abdalla was served with a Decision to Continue Detention following an ICE 90-day post order custody review. (Doc # 1-1, Pg ID 26) The letter informed Abdalla that ICE was actively working on obtaining a travel document for his removal. On August 29, 2016, the Embassy of the Federal Republic of Somalia issued a travel document for Abdalla, which recently expired. (Doc # 1-6, Pg ID 57) On November 15, 2016, Abdalla was served with another Decision to Continue Detention from ICE following a 180-day post order custody review. (Doc # 1-1, Pg ID 27) The letter informed Abdalla that ICE was working with the government of Somalia to secure an expected travel document for his removal.

         According to a Declaration of Robert Tremont (“Tremont”), an ICE Detention and Deportation Officer,

[i]n FY 2016, Somalia had been repatriating all of its verified nationals that have been ordered removed from the United States, but in the fall, Somalian authorities adjusted their position on full acceptance of repatriations due to pending elections, promising the charter scheduled would be resumed once the elections were held. Those elections have been postponed several times and ICE has effected a reduced number of repatriations via commercial air flights in the interim.
Petitioner was tentatively scheduled for removal in December, 2016, via ICE charter flight but that removal was cancelled as the Somali government indicated that the elections had been postponed until January 24, 2017, and they were unable to accommodate most repatriation requests until the conclusion of the elections. Repatriation flights are expected to resume late in January 2017. At that time, Somali authorities have indicated they will accept back all verified Somali nationals subject to final removal orders from the United States. There is a significant likelihood that Petitioner will be removed in the reasonably foreseeable future, once the elections in Somalia are concluded.

(Doc # 1-6, Pg ID 57) In a Supplemental Declaration filed on January 23, 2017, Tremont adds:

There exists a repatriation agreement with the Federal Republic of Somalia (“Somalia”). While such agreement is not in writing, and need not be in writing, Somalia has agreed to accept back all its verified nationals after the Presidential election has taken place. The Somali Ambassador to the United States has stated that they would renew all expired travel documents and will issue on the 170 cases that are pending with their office. Pending completion of the Presidential election at the end of this month, January 27, 2017, they are only accommodating repatriation requests for some Somali nationals returning via commercial flight. After the conclusion of the Presidential election, Somali officials have indicated that charter flights will resume.

(Doc # 13-3, Pg ID 116)

         Publicly available news sources confirm that the presidential election in Somalia has been postponed four times over a period of over four months. In May 2016, the U.S. Department of State issued a press release expressing that “[t]he United States is increasingly concerned about delays in the 2016 Somali electoral process.”[1] Abdalla asserts that Somalia will not accept his deportation because the country is unstable, and the government is very weak and unable to protect its citizens. (Doc # 1-1, Pg ID 33-34) Abdalla further asserts, and the Government does not dispute, that he has cooperated with ICE's efforts to remove him providing all requested documentation; that he has no criminal history; and that he is not a flight risk because, if released on an order of supervision, he would live with his uncle, a U.S. citizen living in Georgia, and would concentrate on working. Id. at 34-35

         II. ANALYSIS

         Abdalla seeks release from ICE custody under supervision via the instant Petition for a Writ of Habeas Corpus filed under 28 U.S.C. § 2241. He argues that his detention is unconstitutional because it has been indefinitely extended beyond the detention period ...

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