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Arjam v. Ashcroft

August 3, 2006

FITORY ARJAM, PETITIONER,
v.
JOHN D. ASHCROFT, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Pisano, District Judge

OPINION

Petitioner Fitory Arjam, an alien currently detained at Middlesex County Adult Correctional Center, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn1 The Respondents are the Attorney General of the United States, the Department of Homeland Security, BICE District Director Andrea Quarantillo, and Warden Edmond C. Cicchi.

I. BACKGROUND

Petitioner is a native of the Republic of Sudan. He entered the United States in 1984 or 1985 and became a lawful permanent resident in 1990. Based upon convictions for possession of controlled substances, Petitioner was ordered removed on May 27, 1997. The removal order became final on June 26, 1997, when Petitioner's time to appeal expired. On August 19, 1997, officials of the Sudanese Mission in New York agreed to issue the appropriate travel documentation.

On December 5, 1997, the Immigration and Naturalization Service issued a Final Notice of Immigration Bond Breach after Petitioner failed to appear for an interview scheduled for September 26, 1997. Petitioner was taken into INS custody on May 16, 2002.

Petitioner then filed a Motion to Reopen and for Stay of Removal. On May 29, 2002, an Immigration Judge issued a stay of removal pending action on Petitioner's Motion to Reopen. By Decision and Order dated June 17, 2002, the IJ denied Petitioner's Motion to Reopen and dissolved the stay of removal. Petitioner appealed to the Board of Immigration Appeals.

By Order dated October 4, 2002, the BIA affirmed the IJ's decision. Petitioner filed a Petition for Review with the U.S. Court of Appeals for the Third Circuit. Following transfer of the Petition for Review to the Court of Appeals for the Second Circuit, Petitioner withdrew his appeal on April 7, 2004.

On April 14, 2004 and October 25, 2004, the Bureau of Immigration and Customs Enforcement conducted Post-Order Custody Reviews for Petitioner.

Petitioner had provided to immigration authorities a translated birth certificate identifying his father as Guma Arjam. On August 1, 2004, a State Department officer in Sudan advised Detention Officer Kerry Gill that local authorities in Sudan had determined, with respect to Petitioner's translated birth certificate, that there was no such birth registration or page number in their archives and that all of the information contained in the birth certificate was "bogus." (Affidavit of John G. Silbermann, Ex. A at 25.)

On August 26, 2004, Petitioner was served with a Warning for Failure to Depart and an Instruction Sheet, detailing Petitioner's obligation to assist in effecting his removal from the United States. On October 25, 2004, DO Gill noted Petitioner's continuing failure to provide immigration officials with evidence of his identity and citizenship and recommended that Petitioner be considered non-cooperative until he provided the evidence required by the Sudanese Government for travel document issuance. On October 27, 2004, Petitioner was served with a Notice of Failure to Comply indicating that Petitioner's removal period was extended for failure to cooperate. (Ex. A at 30.) This Petition followed.

Petitioner contends that he has cooperated with efforts to remove him by providing the translated copy of his birth certificate.

Respondents contend that Petitioner has failed to cooperate, not only because the translated birth certificate is "bogus," but also because Petitioner has provided multiple names for his father, including Guma Arjam, Goama Arjam, Gimah Hamdan, and Guma Hamdon Arjam. Petitioner counters that the kinship naming system in Sudan is very complex and that persons may be known by several names. Petitioner acknowledges the "mess" he created by "misrepresenting" his father's name, but states that the misrepresentation cannot be considered "material." (Petitioner's Response at 8.)

II. ANALYSIS

Post-removal-order detention is governed by 8 U.S.C. ยง 1231(a). Section 1231(a)(1) requires the Attorney General to attempt to effectuate ...


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