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Salawu v. Hendricks

United States District Court, D. New Jersey

May 2, 2014

MOHAMMED SALAWU, Petitioner,
v.
ROY L. HENDRICKS, et al., Respondents.

MEMORANDUM OPINION

ESTHER SALAS, District Judge.

1. Mohammed Salawu, a native and citizen of Nigeria, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 challenging his post-removal period detention since April 16, 2013, at Essex County Correctional Facility in New Jersey by the Department of Homeland Security ("DHS"). He asserts that he entered the United States on a student visa in 1985; DHS took him into pre-removal period custody on March 20, 2011; an Immigration Judge ordered his removal to Nigeria on December 28, 2012; his removal order became final on April 16, 2013, when the Board of Immigration Appeals denied his appeal. He asserts that his removal to Nigeria is not realistic because he cooperated fully in efforts to remove him and "Nigeria has a special Treaty with the United States on the procurement of travel document[s] that must be initiated by [DHS], with or without the petitioner's consent or contribution to the process of obtaining Petitioner's travel document." (ECF No. 1 at 5.) He further maintains that his removal to Nigeria "is not significantly likely to occur in the reasonably foreseeable future, as [DHS] has no evidence on hand or on the record for a certain date to obtain Petitioner's travel document from the Nigerian Consulate." Id. at 5. He argues that his prolonged detention without a hearing to determine whether his detention is necessary is not authorized by statute or regulation, and violates his right to due process of law.

2. This Court has subject matter jurisdiction over the Petition under § 2241 because Petitioner was detained within its jurisdiction in the custody of the DHS at the time he filed his Petition, see Spencer v. Kemna, 523 U.S. 1, 7 (1998), and he asserts that his detention violates federal law and his constitutional rights. See Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d Cir. 2005).

3. In accordance with Rule 4 of the Rules Governing Section 2254 Cases, applicable to § 2241 cases through Rule 1(b), see 28 U.S.C. § 2254 Rules 1(b), this Court has screened the Petition for dismissal. See McFarland v. Scott, 512 U.S. 849, 856 (1994) ("Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face."). For the reasons explained below, this Court will summarily dismiss the Petition because Petitioner has not alleged facts showing that there is "good reason to believe that there is no significant likelihood of removal [to Nigeria] in the reasonably foreseeable future, " as required by Zadvydas v. Davis, 533 U.S. 678, 701 (2001).

4. Once an alien's order of removal is final, the Attorney General is required to remove him or her from the United States within a 90-day "removal period." See 8 U.S.C. § 1231(a)(1)(A) ("Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the removal period').") 8 U.S.C. § 1231(a)(1)(A). Section § 1231(a)(2) requires DHS to detain aliens during this 90-day removal period. See 8 U.S.C. § 1231(a)(2) ("During the removal period, the Attorney General shall detain the alien"). This 90-day removal period begins on the latest of the following dates:

(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order.
(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.

8 U.S.C. § 1231(a)(1)(B).

5. If DHS does not remove the alien during this 90-day removal period, then § 1231(a)(6) authorizes DHS to thereafter release the alien on bond or to continue to detain the alien. See 8 U.S.C. § 1231(a)(6) ("An alien ordered removed... may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).")

6. The Supreme Court held in Zadvydas that § 1231(a)(6) does not authorize the Attorney General to detain aliens indefinitely beyond the removal period, but "limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States." Zadvydas, 533 U.S. at 689. To guide habeas courts, the Supreme Court recognized six months as a presumptively reasonable period of post-removal-period detention. Id. at 701.

7. To state a claim under § 2241, the alien must assert facts showing that he has been detained for more than six months and that there is no significant likelihood of removal in the reasonably foreseeable future. See Zadvydas, 533 U.S. at 701. Specifically, the Court held:

After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may ...

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