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Dut v. (Acting) Director of Bureau of Immigration and Customs Enforcement

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

August 19, 2019

JAMES DUT, Petitioner,
v.
(ACTING) DIRECTOR OF BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, Respondent.

          ORDER DENYING PLAINTIFF'S PETITION FOR WRIT OF HABEAS CORPUS [#1]

          Denise Page Hood, United States District Court Judge.

         I. BACKGROUND

         On April 4, 2019, Petitioner James Dut (“Dut”) filed the instant Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241. (Doc # 1) On April 12, 2019, the Court issued an Order Directing Service and Response and staying the removal of Dut. (Doc # 2) On April 18, 2019, the Court entered a Stipulated Order vacating the stay of removal. (Doc # 4) On April 23, 2019, the Government filed a Response. (Doc # 5) The Court held a hearing on April 30, 2019.

         Dut is a native of South Sudan. (Doc # 1, Pg ID 6) Dut entered the United States as part of a “Lost Boys of Sudan” resettlement program in 2001 and was subsequently granted permanent resident status on June 6, 2006. (Id.) Between June 1, 2016 and April 26, 2017, Dut committed approximately 15 misdemeanor offenses and one felony offense. (Id.) Dut committed the felony offense on April 26, 2017, and it involved an alleged first-degree home invasion in violation of MCL 750.110a(2). (Id.) Dut pled nolo contendre to this felony on October 9, 2017 and was sentenced to one year in prison with credit for time served. (Id.)

         Following Dut's criminal sentence, he was transferred to U.S. Immigration and Customs Enforcement (“ICE”) custody and deportation proceedings subsequently commenced. (Id. at 6-7.) Dut was ordered removed on September 7, 2018. (Id. at 7.) He chose not to appeal his removal, and the time to do so has passed. (Id.) Dut has been in ICE custody for over eleven months pending his removal to South Sudan.

         According to a declaration of Jason Zywica (“Zywica”), ICE Deportation Officer,

The United States has a repatriation agreement with South Sudan and South Sudan has cooperated in the issuance of travel documents for the removal of its citizens. . . . [Zywica] completed a request for a travel document to remove Dut to South Sudan on October 29, 2018 and forwarded it on October 30th. . . .With recent South Sudanese cases, travel documents have been successfully issued following a case review and interview by South Sudanese consular officials. . . . If the alien cooperates in the interview, a travel document is typically issued three to four weeks after the interview. ICE was unable to get a confirmed appointment to present the request to the South Sudan Embassy until March 22, 2019. There is no indication that the South Sudan Embassy will not issue a travel document for Dut. Dut is scheduled for an interview with consular officials from the South Sudan Embassy on April 24, 2019.
A 90-day Post Order Custody Review (POCR) was completed and a letter was signed on January 4, 2019, continuing Dut's detention because ICE expects his removal to occur in the near future and because of his criminal history. A 180-day POCR was completed on April 8, 2019, and a decision regarding continued detention is forthcoming. Based on [Zywica's] experience in removing aliens to South Sudan, [he believes] Dut's removal is significantly likely to occur in the reasonably foreseeable future.

(Doc # 5-1, Pg ID 39-40)

         II. ANALYSIS

         Dut 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 authorized by 8 U.S.C. § 1231(a)(6) of the Immigration and Nationality Act.

         Federal courts have jurisdiction to consider challenges to the lawfulness of immigration-related detention in habeas proceedings. Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001). A district court has the power to grant a writ of habeas corpus in accordance with 28 U.S.C. § 2241, which provides in pertinent part:

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. . . . (c) The writ of habeas corpus shall not extend to a prisoner unless-- (1) He is in custody under or by color of the authority of ...

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