Komlanvi v. Nielsen et al, No. 4:2018cv01058 - Document 10 (S.D. Tex. 2018)
Court Description: MEMORANDUM OPINION AND ORDER granting 6 MOTION to Dismiss 1 Petition for Writ of Habeas Corpus, dismissing with prejudice 1 Petition for Writ of Habeas Corpus. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Komlanvi v. Nielsen et al Doc. 10 United States District Court Southern District of Texas ENTERED July 09, 2018 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION EDOH KOMLANVI, A#078765854, David J. Bradley, Clerk § § § Petitioner, § § § § § § § v. JEFF SESSIONS, United States Attorney General, et al., Respondents. CIVIL ACTION NO. H-18-1058 § MEMORANDUM OPINION AND ORDER The petitioner, (A#078765854), Edoh Komlanvi, has filed a Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. seeking also known as Komlanvi Edoh release 2241 § ("Petition") from detention by (Docket Entry No. immigration officials. 1), Now pending before the court is Respondents' Motion to Dismiss pursuant to Rules Procedure 12 (b) (1) and 12 (b) (6) ("Respondents' Motion") petitioner has not filed a expired. law, of the Federal (Docket Entry Rules of Civil No. 6) . The response and his time to do so has After considering all of the pleadings and the applicable the court will grant Respondents' Motion and dismiss this action for the reasons explained below. Dockets.Justia.com I . Background The petitioner is a native and citizen of Togo, West Africa. 1 He was taken into custody by Immigration and Customs Enforcement ("ICE") on March 1, 2017, after serving an 11-year prison sentence in the Texas records ( "TDCJ") . 2 Department of Criminal Justice reflect that the petitioner received following a conviction for sexual assault. this Public sentence See Edoh v. State, 245 S.W.3d 606 (Tex. App. -Houston [1st Dist] 2007, no pet.). While in custody of TDCJ, the petitioner was ordered removed following a hearing before an immigration judge. 3 He has remained in ICE custody since his release from prison. On April 4, 2018, the petitioner filed his Petition for habeas corpus relief under 28 U.S.C. § 2241, arguing that he is entitled to release from custody on the grounds that immigration officials have failed to effect his removal within a reasonable time. 4 petitioner relies on Zadvydas v. which requires an Davis, 121 S. immigration detainee's Ct. release The 2491 (2001), under certain circumstances, aft€r the expiration of a presumptively reasonable 1 Petition, Docket Entry No. 1, p. 3 2 Id. at 3-4 ~ ~ 11. 11. 3 Id.; see also Declaration of Deportation Officer Christopher Bacchus ("Bacchus Declaration"), Docket Entry No. 6-1, p. 1. 4 Petition, Docket Entry No. 1, pp. 4-5 -2- ~~ 16-18. six-month period of detention, where there is no prospect of removal in the foreseeable future. Exhibits provided by petitioner reflect that his detention has been continued because of his criminal record. have supplemented the record with 5 The respondents information showing that officials are working with the Ambassador of Togo to procure a travel document for his removal. 6 Arguing that the petitioner's removal is foreseeable, the respondents maintain that his continued detention is not unreasonable or unconstitutional and that the Petition should be dismissed for failure to state a claim. 7 II. Standards of Review By Act of Congress, "[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and , any circuit judge within their respective jurisdictions . 28 U.S.C. § 2241(a). The writ of habeas corpus is available to an individual who can demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." U.S.C. § grounds 2241(c) (3) that his 28 The petitioner seeks habeas relief on the continued detention while awaiting removal violates due process. 5 Decision to Continue Detention, Docket Entry No. 1, p. 20. 6 Bacchus Declaration, Docket Entry No. 6-1, p. 1. 7 Respondents' Motion, Docket Entry No. 6, pp. 4-9. -3- The respondents invoke both Rule 12(b) (1) of the Federal Rules of Civil Procedure, which authorizes dismissal for lack of subject matter jurisdiction, and Rule 12(b) (6), arguing that the petition fails to state a claim upon which relief may be granted. Motions to dismiss under Rule 12 (b) ( 6) are appropriate where a complaint or petition fails to allege facts which, accepted as true, show that the pleader articulates a plausible claim for the relief sought. See, ~' (2007). Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 Although review under Rule 12 (b) ( 6) is typically confined to the contents of the pleadings, a court may consider documents incorporated by reference into the complaint. See Tellabs Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499, 2509 (2007). A court may also consider documents attached to a motion to dismiss. Collins v. Morgan Stanley Dean Witter, Cir. 2000). The Fifth Circuit 224 F.3d 496, has clarified See 498-99 that (5th "such consideration is limited to documents that are referred to in the plaintiff's complaint and are central to the plaintiff's claim." Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003) (citing Collins, 224 F.3d at 498-99). III. Once a removal typically has United States. 90 order days Discussion becomes to effect 8 U.S.C. § final the an alien's Attorney departure 1231 (a) (1); Andrade v. F.3d 538, 543 (5th Cir. 2006). General from the Gonzales, 459 Aliens may be detained during the -4- removal period. See 8 U.S.C. § 1231 (a) (2). If the alien is not promptly deported within the removal period, he may be eligible for supervised release until removal can be accomplished. See id. at § 1231(a) (3). An alien may be detained beyond the removal period if he is a risk to the community or he is unlikely to comply with the removal order if released. In Zadvydas v. Davis, See id. at § 12 31 (a) ( 6) . 121 S. Ct. 2491, 2504-05 (2001), the Supreme Court held that the Constitution does not permit indefinite detention lasting beyond six months past the 90-day removal period. After the expiration of six months, an alien may seek his release from custody by demonstrating a "good reason to believe that there is no significant likelihood of removal foreseeable future[.]" Id. at 2505. in the reasonably The alien bears the burden of proof in showing that no such likelihood of removal exists. If the alien makes this showing, the burden shifts to Id. the government, which "must respond with evidence sufficient to rebut that showing." Id. Not every alien in custody will be entitled to automatic release after the expiration of the under the scheme announced in Zadvydas. six-month period "To the contrary, an alien may be held in confinement until it has been determined that there is no significant foreseeable future." likelihood of removal in the reasonably Id. The petitioner has not met his initial burden of showing that there is no significant likelihood of removal in the foreseeable future because exhibits attached -5- to the Petition reflect that immigration officials are working with the government of Togo to procure the necessary travel documents. The petitioner's continued detention is justified, moreover, by his criminal record. U.S.C. § 1231(a) (6). See 8 The petitioner has therefore failed to show that his continued detention violates the holding in Zadvydas or the Constitution. See Andrade, 459 F.3d at 543-44 (stating that conclusory statements are insufficient to meet an alien's burden of proof under Zadvydas or to demonstrate a constitutional violation in connection with his continued detention). Accordingly, the Petition will be denied and this action will be dismissed. IV. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. Respondent's Motion to Dismiss (Docket Entry No. 6) is GRANTED. 2. The Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 filed by Edoh Komlanvi (Docket Entry No. 1) is DENIED and this action will be dismissed with prejudice. The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this 9th day of July, 2018. UNITED -6- LAKE DISTRICT JUDGE
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