United States District Court, W.D. Michigan, Northern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
J. QUIST UNITED STATES DISTRICT JUDGE
an alien currently detained at Chippewa County Jail, filed a
petition for a writ of habeas corpus under 28 U.S.C.
§2241 challenging his detention by the Department of
Homeland Security. (ECF No. 1.) Respondents filed a response.
(ECF No. 14.) Petitioner filed a reply. (ECF No. 20.) On
December 20, 2015, Magistrate Judge Greeley issued a Report
and Recommendation, recommending that the Court deny the
petition. (ECF No. 24.) Petitioner timely filed an objection.
(ECF No. 25.) Upon receiving objections to a report and
recommendation, the district judge “shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). After
conducting a de novo review of the R & R, the Objection,
and the pertinent portions of the record, the Court concludes
that the R & R should be adopted as the opinion of the
entered the United States on a student visa and remained in
the country after his F-1 status was terminated in November
2008. In September 2015, petitioner was convicted of domestic
violence, taken into custody by Immigration and Customs
Enforcement (ICE). The Department of Homeland Security
initiated removal proceedings. Petitioner was held without
bond, but requested a bond redetermination hearing, which was
held before an immigration law judge on October 13, 2015. The
immigration judge found that Petitioner to be a flight risk
and denied bond. Petitioner appealed to the Board of
Immigration Appeals and the Sixth Circuit, but both appeals
were dismissed. The immigration judge ordered Petitioner
removed from the United States to Kenya in January 2016.
Petitioner's appeal was denied by the BIA, and is pending
in the Sixth Circuit. The Sixth Circuit has issued two orders
denying a stay of removal.
2016, Chippewa County Jail officials served Petitioner with
various immigration forms and attempted to take his picture
to use as a passport photo, but petitioner refused to accept
the documents and have his photo taken. In September of 2016,
ICE issued a decision to continue the detention of Petitioner
based on its finding that Petitioner was a threat to public
safety and a flight risk because a final removal order had
been issued, petitioner had been convicted of a violent
crime, and Petitioner had refused to make good-faith efforts
to obtain travel documents.
alien's detention pending removal is governed by §
241(a) of the Immigration and Nationality Act (INA). 8 U.S.C.
§ 1231(a). When an alien is ordered removed, “the
Attorney General shall remove the alien from the United
States within a period of ninety days.” 8 U.S.C. §
1231(a)(1)(A). During that time, the alien must be detained.
8 U.S.C. § 1231(a)(2). If an alien is not removed within
that time frame, the alien will be “subject to
supervision under regulations prescribed by the Attorney
General.” 8 U.S.C. § 1231(a)(3).
certain circumstances, the Attorney General may detain the
alien beyond the 90-day removal period if the alien has not
yet been removed. For example, if the alien has not been
removed and the Attorney General believes that he is “a
risk to the community or unlikely to comply with the order of
removal, ” the Attorney General may detain the alien
beyond 90 days. 8 U.S.C. § 1231(a)(6). Similarly, the
90-day removal period will be extended “if the alien
fails or refuses to make timely [an] application in good
faith for travel or other documents necessary to the
alien's departure or conspires or acts to prevent the
alien's removal subject to an order of removal.” 8
U.S.C. § 1231(a)(1)(C).
government may not detain an alien indefinitely. Once the
90-day removal has expired and the alien has not been
removed, the government is permitted to continue detention of
the alien for a period of six months as long as removal is
likely to occur within the “reasonably foreseeable
future.” Zadvydas v. Davis, 533 U.S. 678, 701,
121 S.Ct. 2491, 2505 (2001) An “alien may be held in
confinement until it has been determined that there is no
significant likelihood of removal in the reasonably
foreseeable future.” Id. Ultimately, the
burden is on the alien to show that there is “good
reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future.”
Id. If the alien succeeds in making that showing,
the burden shifts to the government to “respond with
evidence sufficient to rebut that showing.”
Id. Most courts have held “that an alien
cannot assert a viable constitutional claim when his
indefinite detention is due to his failure to cooperate with
the INS's efforts to remove him.” Pelich v.
I.N.S., 329 F.3d 1057, 1061 (9th Cir. 2003); see
also Moore v. Immigration & Customs Enf't, No.
09-13207, 2009 WL 3568638, at *2 (E.D. Mich. Oct. 30, 2009)
& R rejected as moot Petitioner's claims regarding
due process violations connected to his bond redetermination
hearing before the immigration judge in November 2015. (ECF
No 24 at PageID.155-56.) Petitioner objects and argues that
the R & R misapplies the mootness doctrine. (ECF No. 25
at PageID.162-63.) This objection is without merit. Habeas
challenges to the legality of pre-removal detention are
mooted when an alien is subject to a final order of removal.
See Kapiamba v. Gonzales, No. 1:07-CV-335, 2009 WL
1406648, at *2 (W.D. Mich. May 19, 2009) (collecting cases).
& R addressed and agreed with the government's
argument that the standards for detention under
Zadvydas should not apply to Petitioner because he
failed to cooperate with various removal procedures. (ECF No.
24 at PageID.152-58.) Two of Petitioner's objections
attack that conclusion by referencing portions of the record
that appear to show that Petitioner has indeed cooperated
with ICE in obtaining his removal. (ECF No. 25 at
PageID.160-62; 164-65.) Whatever the merits of these issues,
Petitioner's objection still fails to make any persuasive
argument that there is “no significant likelihood of
his removal from the United States within the foreseeable
future, ” as required under Zadvydas. As the R
& R points out, any evidence of cooperation by Petitioner
would seem to be accelerating the removal, and Petitioner has
given no reason to believe that his removal will be
significantly delayed if he cooperates. This objection is
IT IS HEREBY ORDERED that Petitioner's objections (ECF
No. 25) are OVERRULED.
FURTHER ORDERED that the Report and Recommendation (ECF No.
24.) is ...