United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
Patrick J. Hanna United States Magistrate Judge
before the court is a Petition for Writ of Habeas Corpus
filed pursuant to 28 U.S.C. §2241 by Petitioner, Lusanga
Lusanga. This matter has been referred to the undersigned
magistrate judge for review, report, and recommendation in
accordance with 28 U.S.C. §636(b)(1)(B).
show, in an affidavit by Richard A. Brooks, the Assistant
Field Office Director of the United States ICE facility in
Oakdale, Louisiana, that Lusanga, a native and citizen of the
Democratic Republic of Congo, entered the United States as an
Asylee on July 8, 1993. (Rec. Doc. 3-1). He was convicted on
a robbery charge and on August 31, 2012, an Immigration Judge
issued an order of removal from the United States.
Id. On January 13, 2012, an Appeal to the Board of
Immigration Appeals was dismissed and a petition for review
was denied by the United States Court of Appeals for the
Second Circuit on November 1, 2018. Id. He was
released on an Order of Supervision but taken back into ICE
Custody on July 31, 2018. Id.
Decision to Continue Dentition as issued on November 1, 2018,
which provided that ICE was working with the Government of
the Democratic Republic of Congo to obtain a travel document
and that travel document was expected. [Rec. Doc. 3-2] A
second Decision to Continue Detention was issued on January
23, 2019. [Rec. Doc. 3-3]
February 12, 2019, a travel document, valid until May 2019,
was issued. [Rec. Doc. 3-4] On March 21, 2019, Petitioner
refused to board a commercial airline on a non-escorted
removal attempt. [Rec. Doc. 3-1] On April 23, 2019,
Petitioner refused to board the departure flight from
Nairobi, Kenya to Kinshasa, Democratic Republic of Congo on
an escorted removal attempt. [Rec. Doc. 3-5]
Law and Analysis
challenges his detention pending removal. The statute
applicable to the detention of aliens under final orders of
deportation, 8 U.S.C. § 1231(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. The removal period begins
on the latest of the following: 1) the date the removal order
becomes administratively final; 2) the date of a court's
final order if the removal order is judicially reviewed and
the court orders a stay of the removal of the alien; or 3)
the alien is released from detention or confinement (except
under an immigration process). 8 U.SC. § 1231(a)(1)(B).
ICE has 90 days to remove an alien after he is ordered
removed under 8 U.S.C. § 1231 (a) (1) (A), the Supreme
Court has held that § 1231 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. The presumptively reasonable six-month removal
period begins with the beginning of the removal period, when
the order of removal becomes final. Zadvydas v.
Davis, 285 F.3d 398, 403 (5th Cir. 2002), citing
Zadvydas v. Davis, 533 U.S. 678 (2001); see also,
Guo Xing Song v. U.S. Attorney General, 516 Fed.Appx.
894, 899 (11th Cir. 2013); Akinwale v. Ashcroft, 287
F.3d 1050, 1052 n. 3 (11th Cir. 2002); Idowu v.
Ridge, 2003 U.S. Dist. LEXIS 13503, 2003 WL 21805198, *3
(N.D.Tex. 2003)(citing cases). Thus, the Supreme Court and
the Fifth Circuit have both found that the presumptively
reasonable six-month removal period includes the statutory
90-day removal period.
detention for six months does not mandate automatic release.
At that point, a determination must be made as to whether
there is a significant likelihood of Petitioner's removal
in the reasonably foreseeable future. Andrade v.
Gonzales, 459 F.3d 538, 543 (5th Cir. 2006.) “[I]n
order to state a claim under Zadvydas the alien not
only must show post-removal order detention in excess of six
months but also must provide evidence of a good reason to
believe that there is no significant likelihood of removal in
the reasonably foreseeable future.” Akinwale v.
Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2001). To meet
his burden under the second prong, an alien's claim must
be supported by more than mere “speculation and
conjecture.” Idowu v. Ridge, No. 03-cv- 1293,
2003 WL 21805198, *4 (N.D. Tex. Aug. 4, 2003) (citing
Fahim v. Ashcroft, 227 F.Supp.2d 1359, 1366 (N.D.Ga.
2002)). In order to shift the burden to the Government, an
alien must demonstrate that “the circumstances of his
status” or the existence of “particular
individual barriers to his repatriation” to his country
of origin are such that there is no significant likelihood of
removal in the reasonably foreseeable future. Id. If
the alien fails to come forward with an initial offer of
proof, the petition is ripe for dismissal. Akinwale,
287 F.3d at 1051.
six-month period is tolled if the alien "hampers"
his deportation by, for example, initiating litigation
regarding the validity of the deportation order or
obstructing the INS from obtaining travel documents.
Daniel v. Holder, 2015 U.S. Dist. LEXIS 125303, *3
(W.D. La. August 18, 2015). When the actions of an alien
prevent the INS from effecting deportation, delaying tactics
do not support the alien's claim for release from
deportation. Id. An alien is not entitled to relief
for a delay that he himself has intentionally caused by
deliberately obstructing his otherwise imminent deportation;
it would be inequitable to allow him to benefit from that
delay. Id. (citing Balogun v. I.N.S., 9
F.3d 347, 351 (5th Cir. 1993); see also Mytyuk v.
Young, 347 Fed.Appx. 50, 51 (5th Cir. 2009); Benn v.
Bureau of Immigration and Customs Enforcement, 82
Fed.Appx. 139 (5th Cir. 2003) (Benn's incomplete and
conflicting statements to the INS hampered the INS's
ability to effectuate removal and served to extend the
case at bar, the petitioner has refused to board the plane on
two occasions. With valid travel documents from Democratic
Republic of Congo, the petitioner who is subject to a final
order of removal refused to board the plane on March 21,
2019, and April 23, 2019. This Court agrees with the
Government's contention that the delay in
Petitioner's removal has been due to his actions.
“The detainee cannot convincingly argue that there is
no significant likelihood of removal in the reasonably
foreseeable future if the detainee controls the clock."
Hook v. Lynch, 639 Fed.Appx. 229 (5th Cir. 2016);
Daniel v. Holder, No. 1:15- CV-00067, 2015 WL
5553670 at *2 (W.D. La. Aug. 18, 2015)(“Daniel's
continued detention has been due to Daniel's own
obstructive actions in twice refusing to board the aircraft
for removal, and Daniel's obstructive efforts served to
extend the removal period.”); Kharash v.
Holder, No. 14-0648, 2015 WL 920796, at * 6 (W.D. La.
March 3, 2015)(“In sum, by refusing to board flights to
his home country on three occasions, petitioner has acted to
prevent his removal. As such, the removal period is
Lusanga has not shown there is no significant likelihood of
his removal in the reasonably foreseeable future, he is not
entitled to relief under Zadvydas. Accordingly, his
request for release should be denied and dismissed with
prejudice. For these reasons, IT IS
RECOMMENDED that ...