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Kharash v. Holder

United States District Court, W.D. Louisiana, Monroe Division

February 10, 2015

NASERELDIN KHARASH,
v.
ERIC H. HOLDER, JR., ET AL., Section P.

REPORT AND RECOMMENDATION

KAREN L. HAYES, Magistrate Judge.

Before the undersigned Magistrate Judge, on reference from the District Court pursuant to 28 U.S.C. § 636(b)(1)(B), is a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 [doc. # 1] filed by Nasereldin Kharash ("petitioner"). For reasons stated below, it is recommended that the petition be DENIED and DISMISSED with prejudice.

Background

Nasereldin Kharash is a native of Sudan, and an immigration detainee who, since February 2013, has resided in the custody of the Department of Homeland Security/Bureau of Immigration and Customs Enforcement (DHS/ICE). On March 24, 2014, Kharash filed the instant petition for writ of habeas corpus. He alleged that on November 16, 2012, he was ordered removed from the United States, and that the order became final when he failed to appeal it. (Kharash Affidavit; Petition, Exh. [doc. # 1]). Relying on Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001), Kharash argued that his continued detention violated his right to due process under the Fifth Amendment of the United States Constitution. He sought declaratory and injunctive relief enjoining the government from constitutional violations, and praying for any other relief the court deemed necessary.

In light of the facts alleged by petitioner, the court ordered the government to file a response to the petition. (April 14, 2014, Mem. Order [doc. # 2]). On May 9, 2014, the government so complied. (Gov.'t Response [doc. # 6]). On May 16, 2014, petitioner filed a supplemental brief, which was docketed as a motion for preliminary injunction. [doc. # 8]. On May 20, 2014, the undersigned appointed counsel to represent petitioner, and ordered an evidentiary hearing eventually set for July 17, 2014. See doc. #s 9-17.

At the July 17, 2014, hearing, petitioner, through counsel, orally moved to continue the hearing because he agreed to "now cooperate." (Minutes of Court [doc. # 23]). He also orally moved to withdraw his pending motion for preliminary injunction. Id. The court granted both motions and reset the hearing for September 3, 2014. Id.

Nevertheless, on August 21, 2014, petitioner filed a pro se motion to stay his removal on the basis that Sudan was under "Temporary Protected Status, " and therefore if he were deported, he would have a high chance of being killed on sight upon arrival in his native country. See Aug. 25, 2014, Report and Recommendation [doc. # 27]. The court denied the motion for lack of jurisdiction. Id.; Oct. 8, 2014, Judgment [doc. # 34].

Meanwhile, petitioner did not depart the United States. Following several continuances, an evidentiary hearing was held on January 29, 2015. An interpreter certified in Arabic was present and assisted petitioner with translation. The matter is now before the court.

Findings

Four government witnesses, plus petitioner, testified at the hearing. The government witnesses included Trevence King, an immigration enforcement agent with DHS/ICE; Lisa Fruge', a DHS/ICE deportation officer; Jeremy Lee, a detainee escort for DHS/ICE; and Clen Roberts, an immigration enforcement agent for DHS/ICE. The government introduced all 24 exhibits that were accepted into evidence. From the witness testimony and exhibits, the undersigned finds as follows:

1. Petitioner is a native and citizen of Sudan.

2. Petitioner was admitted to the United States at New York, New York on May 28, 1989, on a non-immigrant student visa to attend Columbia University.

3. Petitioner did not attend Columbia University.

4. On May 28, 2010, petitioner was convicted of domestic assault in Shelby County, Tennessee, and sentenced to time served.

5. Because of petitioner's failure to maintain or comply with the conditions of his non-immigrant status, DHS advised petitioner on June 7, 2010, that he was subject to removal from the United States and issued him a notice to appear ("NTA"). In connection therewith, DHS also issued a warrant for petitioner's arrest.

6. On June 7, 2010, petitioner was taken into DHS custody. He was released on bond on September 29, 2010.

7. Petitioner appeared at a hearing before an immigration judge on July 28, 2010. In a November 16, 2012, written decision, the immigration judge:

a) Denied petitioner's application for asylum;
b) Denied petitioner's application for ...

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