United States District Court, D. New Mexico
ORDER FOR SUPPLEMENTAL BRIEFING
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
MATTER is before the Court on review of the record.
On September 7, 2017, Petitioner filed a Petition for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, by a
Person Subject to Indefinite Immigration Detention
(“Petition”), (Doc. 1), and, on December 14,
2017, Respondents filed Respondents' Answer to
Petition for Writ of Habeas Corpus, (Doc. 9). This case
was reassigned to the undersigned as the pretrial judge on
October 29, 2018. (Doc. 12). Having reviewed the parties'
submissions, record of the case, and relevant law, the Court
finds that supplemental briefing is necessary to determine
how to proceed on Petitioner's claims.
Petition, Petitioner states he is a native and citizen of
Ghana, and he was first taken into Immigration and Customs
Enforcement (“ICE”) custody on January 30, 2017.
(Doc. 1 at 3). Petitioner states he was ordered removed by an
Immigration Judge on July 6, 2017, and he appealed that
decision with the Board of Immigration Appeals
(“BIA”). Id. at 4. He challenges his
continued detention pursuant to Zadvydas v. Davis,
533 U.S. 678 (2001), and 8 U.S.C. § 1231(a), because he
contends his detention has exceeded the six-month limit on
what is presumptively reasonable. Id. at 6-8.
response, Respondents contend the Court does not have
jurisdiction over this matter because Petitioner's appeal
to the BIA is still pending. (Doc. 9 at 1-3). Respondents
further argue that the six-month period of detention that is
presumptively reasonable does not begin to run until the BIA
rules on Petitioner's appeal of his removal order.
Id. at 4-5. Therefore, Respondents argue that, even
if the Court has jurisdiction, Petitioner's claim should
be denied because he has not shown that he is being held in
violation of the law. Id. at 5.
April 25, 2018, Petitioner filed a document titled
Enquiry of Status of Habeas Corpus Petition, (Doc.
11), in which he states the last document he had received in
this case was an order granting Respondents' request for
an extension of time to respond to the Petition. He further
states that his appeal with the BIA was sustained and
remanded to the Immigration Judge to enter a new decision.
Id. at 1. He states the Immigration Judge again
denied his asylum claim, and that he is “going to
appeal the decision again at the BIA which is going to take a
lot more time to resolve.” Id. He asks the
Court to grant his Petition because he has been detained for
over fifteen months. Id.
U.S.C. § 1226(a), a non-citizen may be arrested and
detained pending a decision on whether the non-citizen is to
be removed from the United States. The Court may consider
habeas challenges to detention by non-citizen detainees who
do not yet have a final order of removal. See Demore v.
Kim, 538 U.S. 510, 517-18 (2003) (finding jurisdiction
and then proceeding to consider the merits of habeas claim of
a non-citizen who was detained during removal proceedings);
see also Soberanes v. Comfort, 388 F.3d 1305, 1310
(10th Cir. 2004) (“Challenges to immigration detention
are properly brought directly through habeas.”).
However, it is not clear how long a non-citizen may be
detained during the pre-removal period.
an order of removal becomes final, the Attorney General
“shall detain” the non-citizen during the 90-day
removal period established under 8 U.S.C. § 1231(a)(2)
(the “removal period”). Immigrants may be
detained beyond the 90-day removal period “only for a
period reasonably necessary to secure the alien's
removal.” Zadvydas, 533 U.S. at 682. The
Supreme Court has held that six months is a presumptively
reasonable period for this “post-removal period”
of detention. Id. at 701. Beyond that six-month
period, if the non-citizen shows that there is “no
significant likelihood of removal in the reasonably
foreseeable future, the Government must respond with evidence
sufficient to rebut that showing.” Id.
on the foregoing, to resolve whether Petitioner's
continued detention violates a statute or the Constitution,
the Court must determine whether Petitioner is in the
pre-removal period, the removal period, or the post-removal
period. The Court will therefore order supplemental briefing
by the parties addressing the status of Petitioner's
removal proceedings, including any arguments related to the
merits of Petitioner's claim for release. In addition,
based on Petitioner's statement that he had not received
Respondent's answer to his Petition, the Court will order
the Clerk to re-send Respondents' Answer to Petition
for Writ of Habeas Corpus, (Doc. 9), to Petitioner at
his address of record.
IS THEREFORE ORDERED that the Clerk of the Court
shall re-send Respondents' Answer to Petition for
Writ of Habeas Corpus, (Doc. 9), to Petitioner at his
address of record.
IS FURTHER ORDERED that Petitioner shall file a
supplemental brief addressing the status of his removal
proceedings, including any arguments related to the merits of
his claim for release, by November 27, 2018.
Respondent shall file a response to Petitioner's
supplemental brief by December 11, 2018, and
Petitioner may file a reply by December 26,