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SHEFQET v. ASHCROFT

April 25, 2003

BREZNICA SHEFQET, PETITIONER,
v.
JOHN ASHCROFT, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Paul E. Plunkett, United States District Judge

MEMORANDUM OPINION AND ORDER

Breznica Shefqet*fn1 ("Petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner has been ordered deported from the United States and is being detained pending his removal. He claims that his continued detention pending removal from the country is contrary to the laws of (he United States. For the following reasons, the petition will be granted if Respondents fail to remove Petitioner from the country within thirty (30) days.

I. Background

Petitioner, a native of Yugoslavia*fn2, entered the United States without inspection in 1989. His status was adjusted to that of an asylee on April 6, 1993. Since 1993, he has been convicted of numerous state criminal law violations in the circuit court of Illinois*fn3. (Resp. Ex. 2.) Pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act*fn4, the Immigration and Naturalization Service (the "INS") initiated removal proceedings against Petitioner. (Id.) On December 14, 1999, an immigration judge ordered Petitioner removed from the United States to Yugoslavia. (Resp. Ex. 1,) Petitioner was in the custody of the Illinois Department of Corrections until October 1, 2001, at which time he came into the custody of the INS. (Pet'r. Exs. 3 & 4.)*fn5 Since then, he has been detained by the INS subject to a final order of removal. Petitioner cannot be removed from the country until he receives the necessary travel documents*fn6 from the Yugoslavian Embassy (the "Embassy").

U.S. immigration laws permit the INS to detain aliens following a final order of deportation. See 8 U.S.C. § 1231 (West 2002). Sections 1231(a)(1) and (2) of 8 U.S.C. provide that the United States Attorney General shall remove and detain an alien within the "removal period", which is generally ninety days. The beginning date of a removal period can vary; in Petitioner's case, his removal period began on October 1, 2001, the date he was released from the Illinois Department of Corrections. See 8 U.S.C. § 1231 (a)(1)(B)(iii). Rough calculations tell us his ninety-day removal period ended at the end of December 2001,

If an alien is not removed during the ninety-day removal period, the Attorney General is permitted to detain him beyond this period. 8 U.S.C. § 1231 (a)(6). The statute, applicable to Petitioner, reads:

An alien ordered removed who is . . . removable under section 1227(a)(2) . . . 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 [certain] terms of supervision. . . .
Id. The statute does not provide for a maximum period of post-final-order detention.

The INS has conducted "post-order custody review" of Petitioner's case. On February 21, 2002, the District Director of the INS issued a Decision to Continue Detention, which stated that Petitioner was not being released because he had not demonstrated that he was no longer a threat to society and because his only potential sponsors lived in Michigan. (Resp. Ex. 3.) The case was then referred to the INS Headquarters Post-Order Detention Unit (the "HQPDU") for further review. On April 27, 2002, the Director of the HQPDU issued a Decision to Continue Detention, which stated:

. . . it is the experience of the INS that it is able to carry out removals of Yugoslavian nationals. In fiscal year 2001, the INS successfully repatriated 78 Yugoslavian nationals. You have not provided any evidence to show that your case is an exception. A travel document has been requested from the Yugoslavian Government and is currently pending. Therefore, it is expected that your removal from the United States is feasible and will occur in the foreseeable future. You are required to assist the INS in its efforts to remove you by providing evidence of your citizenship and requesting a travel document on your own behalf. . . .
(Resp. Ex 4.) The INS conducted another custody review of Petitioner's case in March 2003. Petitioner remains in INS custody.

Petitioner asserts that there is no likelihood of his removal from the United States in the reasonably foreseeable future and that his continued detention by the INS is contrary to the recent Supreme Court decision of Zadvydas v. Davis, 533 U.S. 678 (2001), and contrary to the Constitution of the United States. Respondents argue that Petitioner's detention is in accordance with regulations promulgated by the Attorney General found at 8 C.F.R. § 241.13*fn7 and permissible under Zadvydas because there is a significant likelihood of repatriation.

II. Legal Standard

A. Availability of Judicial Review

This case is before us on Petitioner's writ of habeas corpus pursuant to 28 U.S.C. ยง ("section") 2241. "The purpose of a writ under this section is to provide a remedy to those individuals who are detained contrary to the constitution or laws of the United States." Kacanic v. Etwood, et al., 2002 WL 31520362, at *2 (E.D.Pa. Nov. 8, 2002) (citing Johnson v. Avery, 393 U.S. 483. 485-86 (1969)). Congress has recently made significant changes to immigration law, limiting judicial review of certain deportation decisions. However, section 2241 habeas corpus ...


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