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Ndiaye v. Adducci

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

February 22, 2017

AITA SENE NDIAYE, Petitioner,
v.
REBECCA ADDUCCI, Respondent.

         ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [#1], GRANTING MOTION FOR STATUS HEARING [#6], GRANTING LEAVE TO FILE SECOND DECLARATION [#8], MOOTING MOTION TO VACATE STAY OF REMOVAL [#9], AND GRANTING MOTION FOR SUBSTITUTION OF COUNSEL [#11]

          Denise Page Hood Chief Judge.

         I. BACKGROUND

         A. Procedural Background

         On January 13, 2017, Petitioner Aita Sene Ndiaye (“Ndiaye”) filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241. (Doc # 1) On January 17, 2017, the Court issued an Order Directing Service and Response and staying the removal of Ndiaye. (Doc # 2) On February 6, 2017, the Government filed a Response. (Doc # 4) On February 9, 2017, the Court entered a Stipulated Order vacating the stay of removal. (Doc # 5) On February 14, 2017, Ndiaye filed an Emergency Motion for an Expedited Status Hearing. (Doc # 6) On February 16, 2017, the Government filed an Ex Parte Motion for Leave to File Second Declaration. (Doc # 8) The Court held a hearing on February 17, 2017. On February 17, 2017, the Government filed an Emergency Motion to Vacate Stay of Removal (Doc # 9), and Ndiaye filed a Response (Doc # 10). On February 20, 2017, Ndiaye filed a Motion for Substitution of Counsel. (Doc # 11)

         The Court held another hearing on February 21, 2017 so that Ndiaye could be present via video conference. The Court set forth all the events surrounding the February 17th hearing. The Court informed Ndiaye of its decision to deny without prejudice her Petition. There being no objection, the Court also informed Ndiaye of its decision to grant her Motion for Substitution of Counsel. The Court further informed Ndiaye that if her removal does not take place by March 15, 2017, as expected, she may renew her Petition for a Writ of Habeas Corpus. Ndiaye raised a concern that her removal had been previously scheduled for June 20, 2016 for which she was flown to several locations in the United States but ultimately returned to Michigan. Ndiaye is concerned that this will happen again because she has not been shown her travel document. The Government agreed on the record to allow Ndiaye's new Counsel to view Ndiaye's redacted travel document pursuant to a protective order.

         B. Factual Background

         Ndiaye is a native and citizen of Senegal. (Doc # 1-1, Pg ID 12) On or about November 27, 2005, Ndiaye was paroled into the United States through Detroit, Michigan until November 26, 2006. (Doc # 1-2, Pg ID 15; Doc # 4-1, Pg ID 130) On December 29, 2011, she was issued a Notice to Appear in immigration court for removal proceedings. (Doc # 4-1, Pg ID 130) On January 15, 2014, an immigration judge found that Ndiaye is an inadmissible alien under 8 U.S.C. § 1182, denied all requests for relief, and ordered Ndiaye removed to Senegal. Id. On August 21, 2014, Ndiaye was issued a final order of removal when the Board of Immigration Appeals dismissed her appeal. Id.; Doc # 1-2, Pg ID 15.

         On October 21, 2015, Ndiaye was enrolled in the U.S. Immigration and Customs Enforcement (“ICE”) Alternatives to Detention Program and placed on an order of supervision. (Doc # 4-1, Pg ID 130; Doc # 1-3) Ndiaye complied with the order, appearing on at least ten occasions at the ICE Detroit Field Office as required. (Doc # 1-4, Pg ID 20) Ndiaye also agreed to comply with the ICE Intensive Supervision Appearance Program to monitor her movements with GPS technology. (Doc # 1-5) On January 14, 2016, Ndiaye filed a request to stay deportation in the ICE Detroit Field Office, requesting to remain in the United States until her son finished the school year. (Doc # 4-1, Pg ID 130; Doc # 1-6, Pg ID 28) ICE granted the stay of deportation on February 3, 2016. (Doc # 4-1, Pg ID 130; Doc # 1-6, Pg ID 28) The record indicates that Ndiaye's son, Amd Diouf, was a third grade student at Reach Academy in Roseville, Michigan at the time. Amd, a U.S. citizen, had near perfect school attendance, exemplary grades in all subjects, and excellent behavior. (Doc # 1-6, Pg ID 29)

         On April 20, 2016, ICE rescinded the stay of deportation because Ndiaye failed to timely renew her Senegalese passport, which was to expire on May 5, 2016. (Doc # 4-1, Pg ID 130; Doc # 1-7, Pg ID 49) The following day ICE issued a Notice of Imminent Removal for Ndiaye. (Doc # 4-1, Pg ID 130; Doc # 1-8, Pg ID 51) On May 3, 2016, ICE attempted to remove Ndiaye without her son, ordering her to appear at the Detroit Metropolitan Airport. (Doc # 4-1, Pg ID 131) Ndiaye could not board the flight because she fell ill at the airport. (Doc # 4-1, Pg ID 131; Doc # 1-9) She was taken to the hospital where she complained of chest pains. (Doc # 1-9) A letter from her doctor, dated May 5, 2016, indicates that Ndiaye was recently diagnosed with “hypertension, 6th cranial nerve palsy and small hemangioma in brain” and requires medical attention on a monthly basis. (Doc # 1-10, Pg ID 68)

         On May 6, 2016, Ndiaye again appeared at the ICE Detroit Field Office, at which time ICE imposed a curfew and indicated that Ndiaye could only leave her house for medical appointments and to transport her son to and from school. (Doc # 1-4, Pg ID 20) On May 9, 2016, Ndiaye was readmitted to the hospital. (Doc # 1-11) She was discharged on May 11, 2016 and diagnosed with “cavernous hemangioma and internuclear opthalmoplegia.” (Doc # 1-12) Ndiaye continued to appear at the ICE Detroit Field Officer as required, and she was taken into ICE custody on June 9, 2016. Ndiaye was included on an ICE charter mission to Senegal scheduled to depart on June 20, 2016, on which date Senegal declined to accept the 21 deportees. (Doc # 4-1, Pg ID 131)

         Ndiaye has been in ICE custody for approximately eight months. She has requested to be released on supervision, including presenting a letter from U.S. Representative Sander Levin on her behalf, to no avail. (Doc # 1-14; Doc # 1-15) On December 12, 2016, Ndiaye was served with a Decision to Continue Detention. (Doc # 1-2, Pg ID 15) The letter informed Ndiaye that ICE was working on obtaining a travel document for her removal and that one was expected. Id. On February 3, 2017, ICE received a travel document for Ndiaye. (Doc # 4-1, Pg ID 131) ICE is currently working on scheduling her departure, and she is expected to depart the United States by March 15, 2017. Id.; Doc # 8-1, Pg ID 145.

         According to a declaration of Vernon Liggins, ICE Deportation Officer,

[b]etween July and December 2016, Senegal's Consul General issued six travel documents for aliens awaiting removal to Senegal. ICE successfully removed three of the six between August and December 2016. Two refused to board commercial aircraft and one reopened her immigration proceedings. On January 26, 2017, ICE received 55 travel documents from the Consul General . . . . ...

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