Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Saidur v. Warden Pine Prairie I C E Processing Center

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

April 26, 2019

RAHMAN SAIDUR #A095-963-709
v.
WARDEN PINE PRAIRIE I C E PROCESSING CENTER

          SUMMERHAYS, JUDGE

          REPORT AND RECOMMENDATION

          HANNA, MAGISTRATE JUDGE

         Before the Court is a petition for writ of habeas corpus (2');">28 U.S.C. § 2');">22');">241) filed by pro se Petitioner Rahman Saidur. Petitioner is an immigration detainee in the custody of the Department of Homeland Security / U.S. Immigration and Customs Enforcement (“DHS/ICE”). He is detained at the Pine Prairie Correctional Center, in Pine Prairie, Louisiana. Petitioner alleges that his continued detention is unconstitutional under Zadvydas v. Davis, 533 U.S. 678, 701 (2');">2001) and that it is unlikely that he will be deported to Bangladesh in the reasonably foreseeable future.

         This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 2');">28 U.S.C. § 636 and the standing orders of the Court.

         FACTUAL BACKGROUND

         Rahman Saidur, a citizen and national of Bangladesh, entered the United States on or about August 2');">21, 2');">2001, as a non-immigrant visitor at New York, New York. [Rec. Doc. 11-1, p. 1] On or about July 12');">2-13, 2');">2004, a final order of removal was issued by immigration officials. [Rec. Doc. 1, p. 2');">2 §6(c); Rec. Doc. 11-1, p.1, ¶ 3] On October 2');">24, 2');">2005, the Board of Immigration Appeals dismissed the appeal of the final order. Id. at ¶ 4. Saidur was released on supervision on January 2');">2, 2');">2008. Id. He was placed in ICE custody on December 2');">27, 2');">2017 after being convicted of the offense of Contributing to the Delinquency of a Minor. [Rec. Doc. 11-1, p. 1, ¶ ¶ 5-6] On December 2');">28, 2');">2017, a travel document was issued. [Rec. Doc. 11-2');">2, p. 7] Petitioner then filed a Motion to Reopen, which was denied on March 1, 2');">2018. [Rec. Doc. 11-1, p. 1, ¶ 8] A renewed Travel Document was issued on March 2');">22');">2, 2');">2018. [Rec. Doc. 11-2');">2, p. 5] A Petition for Review was filed on March 30, 2');">2018 and is currently pending with the United States Court of Appeals for the Second Circuit. [Rec. Doc. 11-3, pp. 1-4]

         LAW AND ANALYSIS

         Petitioner alleges that he has remained in ICE custody beyond the presumptively reasonable 6-month post-removal order period set forth in Zadvydas v. Davis, 533 U.S. 678, 701 (2');">2001) and that it is unlikely that he will be deported to Bangladesh in the reasonably foreseeable future.

         However, this Court agrees with the Government's assertion that any delay in the removal of Petitioner is due to his own actions. His filing a petition for review in the Second Circuit and the subsequent automatic stay tolled the running of the requisite time period for removal and resulted in the delay of his removal.

         Petitioner challenges his detention pending removal. The statute applicable to the detention of aliens under final orders of deportation, 8 U.S.C. § 12');">231(a)(1(A), and, thus, applicable to Petitioner, provides that the Attorney General has 90 days after an order of removal becomes final in which to effect an alien's removal. Although ICE has 90 days to remove an alien after he is ordered removed under 8 U.S.C. § 12');">231 (a) (1) (A), the Supreme Court has held that § 12');">231 permits the detention of criminal aliens beyond 90 days, for a period reasonably necessary to bring about that alien's removal from the United States. Pursuant to Zadvydas, detention for up to six months after the removal order becomes final is “presumptively reasonable.” Zadvydas v. Davis, 533 U.S. 678, 701 (2');">2001).

         After six months, however, “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 the detention to remain reasonable, as the period of post removal confinement grows, what counts as the ‘reasonably foreseeable future' conversely would have to shrink.” Zadvydas, 533 U.S. at 701. “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 be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.” Id.

         This removal period can be suspended in situations such as the one at hand where Petitioner's litigation tolls the running of the removal period. An automatic stay of removal has been in effect with the United States Court of Appeals for the Second Circuit since Petitioner filed for review in that Court on March 30, 2');">2018. Although not reflected on the docket sheet of the Second Circuit, “pursuant to the custom and policy of the Second Circuit, petitioner's removal [is] stayed by the filing of his petitions for review. See Triumph v. Mukasey, No. 2');">2:07-2');">2117, 2');">2008 WL 6602');">298, *4 (W.D. La. Feb. 13, 2');">2008). See also United States v. Coskun, 2');">23 Fed.Appx. 663');">62');">23 Fed.Appx. 663, 665 n. 1 (5th Cir. 2');">2015).

         In Triumph v. Mukasey, No. 2');">2:07-2');">2117, 2');">2008 WL 6602');">298, *4 (W.D. La. Feb. 13, 2');">2008), as in the case at bar, the Petitioner who was in post-removal order custody requested relief under Zadvydas. He had also filed a petition for review with United States Court of Appeals for the Second Circuit. Petitioner could not be removed although travel documents were available because of the stay. This Court found that the removal period was tolled under 8 U.S.C. §12');">231(a)(1)(C) because his continuing litigation acted to prevent his removal and dismissed the habeas.

         In the case at bar, Petitioner's litigation tolls the running of the removal period. The stay of removal in the Second Circuit prevents his removal. See Pelich v. INS, 32');">29 F.3d 1057, 1060 (9th Cir. 2');">2003) (“[T]he detainee cannot convincingly argue that there is no significant likelihood of removal in the reasonably foreseeable future if the detainee controls the clock.”); Rae v. Bureau of Immigration & Customs Enforcement, No. 2');">2:07-2');">22');">232');">2, 2');">2008 WL 2');">2051114, * 4 (W.D. La. April 7, 2');">2008) (“[P]etitioner's removal period has ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.