United States District Court, W.D. Louisiana, Lake Charles Division
SANJAYKUMAR G. PATEL A#073 127 568
JEFF SESSIONS, ET AL.
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
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.
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
is a native and citizen of India who entered the United
States without admission on or about March 6,
1994. 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. 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.
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.
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.
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.
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