KONATE v. TRABUCCO et al, No. 2:2013cv03195 - Document 3 (D.N.J. 2013)

Court Description: OPINION. Signed by Judge Dennis M. Cavanaugh on 11/8/13. (jd, )

Download PDF
NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY OUMAR KONATE, Civil Action No, 13-3 195 (DMC) Petitioner, v. OPINION JOSEPH TRABUCCO, Respondent. APPEARANCES: OUMAR KONATE, A 096 265 640 Delaney Hall (ICE) 451 Dorernus Avenue Newark, New Jersey 07105 Petitioner Pro Se CAVANAUGH, District Judge: Oumar Konate flied a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241. challenging his post-removal-period detention at Delaney Hall, where he is being held in the custody of the Department of Homeland Security ( DHS ) without a bond hearing. Although the government has detained Mr. Konate beyond the six-month presumptively reasonable period of post-removal-period detention (which expired on May 6, 2013), this Court is constrained to dismiss the Petition because it does not allege facts showing that there is good reason to believe that there is no significant likelihood of removal [to the Republic of Congoj in the reasonably foreseeable future, Zadvydas v. Davis, 533 U.S. 678, 701 (2001), or that Mr. Konate s detention is otherwise in violation of federal law. The dismissal is without prejudice to the filing of a new § 2241 petition (in a new case), in the event that Mr. Konate can allege facts showing good reason to believe that there is no significant likelihood of his removal in the reasonably foreseeable future. I. BACKGROUND Oumar Konate asserts that he is a native and citizen of the Republic of Congo. (Petition, ECF No. 1 at 3-4.) He alleges that on April 7, 2005, an immigration judge ordered his removal and on January 23, 2006, his motion to reopen was denied. He asserts that DHS took him into custody on November 6, 2012, and he has remained in custody since that date. He alleges that, although he cooperated fully with efforts to remove him, [tb date, however, [DHSj has been unable to remove [him] to the Republic of Congo or any other country. Id. at 4. Konate further asserts that his removal to the Republic of Congo or any other country is not significantly likely to occur in the reasonably foreseeable future [and t]he Supreme Court held in Zadvydas and Martinez that [DHS sj continued detention of someone like me under such circumstances is unlawful. Id, at 5. He maintains that his detention is not statutorily authorized and violates due process. He seeks a writ of habeas corpus directing respondents to immediately release him. IL DISCUSSION A. Jurisdiction Under 28 U.S.C. § 224 1(c), habeas jurisdiction sha11 not extend to a prisoner unless. [h]e is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 224 1(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). This Court has subject matter jurisdiction over the Petition under § 2241 because Petitioner was detained within its jurisdiction in the custody of the DHS at the time he filed his Petition, see Spencer v. Kemna, 523 U.S. 1, 7 (1998), and he asserts that his detention violates federal law and his constitutional rights. See Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d Cir. 2005). B. Standard of Review 2 Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face, McFarland v. Scott, 512 U.S. 849, 856 (1994); United States v, Thomas, 221 F.3d 430,437 (3d Cir. 2000); Siers v. Ryan, 773 F.2d 37,45 (3d Cir. 1985). Habeas Rule 4 requires a district court to examine a habeas petition prior to ordering an answer and [ijf it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. 28 U.S.C. § 2254 Rule 4, applicable through Rule 1(b). Dismissal without the filing of an answer or the State court record is warranted if it appears on the face of the petition that petitioner is not entitled to relief. Id.; see also McFarland, 512 U.S. at 856; Thomas, 221 F.3d at 437 (habeas petition may be dismissed where none of the grounds alleged in the petition would entitle [the petitionerl to relief ). C. Legality of Detention Detention during removal proceedings is a constitutionally permissible part of that process. Demore v. Kim, 538 U.S. 510 (2003). The Immigration and Nationality Act ( INA ) authorizes the Attorney General of the United States to issue a warrant for the arrest and detention of an alien pending a decision on whether the alien is to be removed from the United States. See 8 U.S.C. § 1226(a) ( On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. . Once an alien s order of removal is final, the Attorney General is required to remove him or her from the United States within a 90-day removal period. See 8 U.S.C. § 123 1(a)(1)(A) ( Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the .3 removal period ). ) 8 U.S.C. § 1231(a)(1)(A). This 90-day removal period begins on the latest of the following: (i) The date the order of removal becomes administratively final. (ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court s final order. (iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement. 8 U.S.C. § 123 1(a)(1)(B). Section See 8 U.S.C. § § 1231 (a)(2) requires DHS to detain aliens during this 90-day removal period. 123 1(a)(2) ( During the removal period, the Attorney General shall detain the alien ). However, if DHS does not remove the alien during this 90-day removal period, then § 1231 (a)(6) authorizes DHS to thereafter release the alien on bond or to continue to detain the alien. Specifically, § 123 1(a)(6) provides: An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3). 8 U.S.C. § 123 1(a)(6). The Supreme Court held in Zadvydas that § 123 1(a)(6) does not authorize the Attorney General to detain aliens indefinitely beyond the removal period, but limits an alien s post-removal-period detention to a period reasonably necessary to bring about that alien s removal from the United States. Zadvydas, 533 U.S. at 689. To guide habeas courts, the Supreme Court recognized six months as a presumptively reasonable period of post-removal-period detention. 4 Id. at 701. The Supreme Court also held that, to state a claim under § 2241, the alien must provide in the petition good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future. Zathydas, 533 U.S. at 701. Specifically. the Supreme Court determined: After this 6-month period, 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 detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the reasonably foreseeable future conversely would have to shrink. 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. Zadvydas, 533 U.S. at 701. In this case, Mr. Konate states that he was taken into DHS custody on November 6, 2012. The six-month presumptively reasonable period of post-removal-period detention expired on May 6, 2013. However, the Zadvydas Court emphasized that [tihis 6-month presumption [j does not mean that every alien not removed must be released after six months. Zathydas, 533 U.S. at 701. Rather, the Supreme Court explained that, to state a claim for habeas relief under 2241, an § alien must provide in the petition good reason to believe that his or her removal is not foreseeable. In the absence of factual allegations supporting Mr. Konate s conclusion that his removal is not reasonably foreseeable, DHS does not have to respond by showing that removal is reasonably foreseeable. See Zadvydas, 533 U.S. at 701 ( After this 6-month period, 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 5 showing. ); see also Barenboy v. Attorney General of US., 160 Fed. App x 258, 261 n.2 (3d Cir. 2005) ( Once the six-month period has passed, the burden is on the alien to provide[j good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future Only then does the burden shift to the Government, which must respond with evidence sufficient to rebut that showing ) (citation and internal quotation marks omitted). Mr. Konate also argues that DHS violated due process by failing to give him a hearing. This claim lacks merit because, under the rationale of Zadvydas, an alien is not entitled to a hearing unless he has been detained beyond the presumptively reasonable six month period and he alleges facts showing that there is no significant likelihood of removal in the reasonably foreseeable future. Zadvydas, 533 U.S. at 701; çf Wilson v. Hendricks, Civ. No. 7315 (KM). 2013 WL 324743 at *2 (D.N.J. Jan. 25, 2013) ( The U.S. Supreme Court has adopted a rule of thumb that a post-removal detention of up to six months is reasonable, but that a bond hearing may be required after that time. ). The instant Petition must be dismissed because Mr. Konate has made no showing whatever that there is no significant likelihood of removal in the reasonably foreseeable future, Encarnacion-Mendez v. Attorney General of US,, 176 Fed. App x 251, 254 (3d Cir. 2006), and he has not otherwise shown that his detention is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 224 1(c)(3); see, e.g., Joseph v. United States, 127 Fed. App x 79, 81 (3d Cir. 2005) ( Under Zadvydas, a petitioner must provide good reason to believe there is no This Court declines to adopt the Ninth Circuit s holding in Dioufv. Napolitano, 634 F.3d 1081, 1092 (9th Cir. 2011), that an alien facing prolonged detention under 1231 (a)(6) is entitled to a § bond hearing before an immigration judge and is entitled to be released from detention unless the government establishes that the alien poses a risk of flight or a danger to the community. See Davies v. Hendricks, Civ. No. 13-2806 (WJM) .2013 WL 2481256 *5 n.2 (D.N.J. June 10. 2013). 6 likelihood of removal, 533 U.S. at 701, and Alva has failed to make that showing here. ); Soberanes v, Cornlört, 388 F. 3d 1305 (10th Cir. 2004) (affirming dismissal of 2241 petition § challenging detention pursuant to § 123 1(a)(6) where petitioner failed to provide good reason to believe that there is no likelihood of removal); Akinwale v. Ashcrofi. 287 F. 3d 1050, 1052 (11th Cir. 2002) ( in 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 ). The dismissal is without prejudice to the filing of a new § 2241 petition (in a new case), in the event that Mr. Konate can allege facts showing good reason to believe that there is no significant likelihood of his removal in the reasonably foreseeable future. 2 III. CONCLUSION For the foregoing reasons, this Court will dismiss the Petition. DENNIS M. DATED: r ,2013 2 Alternatively, if Mr. Konate has reason to believe that his removal in the reasonably foreseeable future is not likely, he may at any time ask DHS to review his detention and he may submit written documentation supporting his request. See 8 C.F.R. § 241.13(d)(1) ( An eligible alien may submit a written request for release to [DHSj asserting the basis for the alien s belief that there is no significant likelihood that the alien will be removed in the reasonably foreseeable future, The alien may submit whatever documentation to [DHSJ he or she wishes in support of the assertion that there is no significant likelihood of removal in the reasonably foreseeable future. ) 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.