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Patel v. Sessions

United States District Court, W.D. Louisiana, Lake Charles Division

February 14, 2019

SANJAYKUMAR G. PATEL A#073 127 568
v.
JEFF SESSIONS, ET AL.

         SECTION P

          HICKS CHIEF JUDGE.

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.

         Before the court is a petition for writ of habeas corpus [doc. 1] filed pursuant to 28 U.S.C. § 2241 by Sanjaykumar G. Patel, who is represented by counsel in this matter. Patel is in the custody of Immigration and Customs Enforcement (“ICE”) and is currently incarcerated at the Allen Parish Public Safety Complex in Oberlin, Louisiana. The federal defendants oppose the motion. Doc. 9.

         This matter has been referred to the undersigned in accordance with the provisions of 28 U.S.C. § 636. For the reasons stated below, IT IS RECOMMENDED that the petition be DENIED and DISMISSED WITH PREJUDICE.

         I.

         Background

         Patel is a native and citizen of India who entered the United States without admission on or about March 6, 1994.[1] Doc. 9, att. 1, p. 1, ¶¶ 1-3. On April 20, 1994, following deportation proceedings at which Patel failed to appear, an immigration judge issued an order for his removal from the United States. Doc. 1, att. 3. Patel was placed in ICE custody on February 23, 2018. Doc. 9, att. 1, p. 1, ¶ 4. He moved to reopen removal proceedings, and that motion was denied by an immigration judge on May 7, 2018. Doc. 9, att. 2, p. 9. On April 17, 2018, ICE requested a travel document. Doc. 9, att. 1, p. 1, ¶ 6. The document was received on September 26, 2018.[2] Id. at p. 1, ¶ 9. Meanwhile, ICE also reviewed Patel's detention and continued it by decisions dated May 21, 2018, and August 31, 2018. Doc. 9, att. 2, pp. 1, 3. On October 1, 2018, the Board of Immigration Appeals (“BIA”) dismissed Patel's appeal of the denial of his motion to reopen immigration proceedings. Id. at 5-8.

         Patel was scheduled for removal on November 15, 2018, by travel documents that expired on December 25, 2018. Doc. 9, att. 1, p. 2, ¶ 11. Before removal could be accomplished, Patel filed a petition for review in the United States Court of Appeals for the Ninth Circuit. Id.; see Patel v. Whitaker, No. 18-72830 (9th Cir.). On November 28, 2018, he filed a motion to withdraw the stay of removal effected by his appeal, stating that he wished to be returned to India as soon as possible. Doc. 9, att. 2, p. 11. The Ninth Circuit granted the motion on December 5, 2018, and lifted the temporary stay of removal. Id. at 10. Patel's case appears to remain pending in that court, with his opening brief due on March 14, 2019. Id.

         Patel also filed the instant habeas petition in this court on October 9, 2018. Doc. 1. Here he challenges his continued incarceration under Zadvydas v. Davis, 121 S.Ct. 2491 (2001). The federal defendants oppose the petition. Doc. 9. Patel has not filed a reply, and his time for doing so has passed. See doc. 4.

         II.

         Law & Analysis

         In Zadvydas, the Court held that it is presumptively unconstitutional for an alien to be detained for six months past the 90-day removal period following an order of removal. 121 S.Ct. at 2504-05. After expiration of this period, an alien may seek release from custody by showing a “good reason to believe that there is no significant likelihood of removal in the foreseeable future.” Adefemi v. Gonzales, 228 Fed.Appx. 415 (5th Cir. 2007). As the Supreme Court emphasized, “[t]his 6-month presumption . . . does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.” Zadvydas, 121 S.Ct. at 2505. In seeking relief under Zadvydas, the petitioner “bears the initial burden of proof in showing that no such likelihood of removal exists.” Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006).

         The concerns of Zadvydas are not implicated, however, when the detainee controls the clock. E.g., Pelich v. INS, 329 F.3d 1057, 1060 (9th Cir. 2003). The removal period may thus be tolled when the petitioner acts in such a way as to prevent his removal, including through his continuing litigation. Triumph v. Mukasey, 2008 WL 660298, at * 4 (W.D. La. Feb. 13, 2008); see also Lawal v. Lynch, 156 F.Supp.3d 846, 854 (S.D. Tex. 2016). As the federal defendants have shown, travel documents were previously issued in this matter. Patel's scheduled departure was delayed by the stay in removal brought about by his petition for review to the Ninth Circuit. Even though the stay has since been withdrawn at Patel's request, his litigation has already prevented his removal. Additionally, the fact that travel documents have already been issued in this matter prevents the court from crediting ...


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