United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. Herndon Judge
Alfred Wachaga is currently being held at the Pulaski County
Detention Center in Ullin, Illinois. (Doc. 1 at 3).
Proceeding pro se, Petitioner has filed a petition
for a writ of habeas corpus under 28 U.S.C. § 2241,
challenging his detention by Immigration & Customs
Enforcement officials since March 31, 2016. (Doc. 1).
Petitioner insists that his detention is improper because he
has been detained pending removal for longer than the six
months that is presumptively allowed under Zadvydas v.
Davis, 533 U.S. 678 (2001), and there is no likelihood
of removal in the reasonably foreseeable future.
matter is now before the Court for a preliminary review of
the Petition. Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts provides that,
upon preliminary review of the petition by the district court
judge, “[i]f 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.” Rule 1(b) of those Rules gives this Court
the authority to apply the rules to other habeas corpus
cases, such as this action.
is a native citizen of the Republic of Kenya who has lived in
the United States for almost eleven years. (Doc. 2 at 2). On
August 6, 2014, he was taken into custody by Immigration and
Customs Enforcement (“ICE”) officials and charged
with overstaying his Visa, which expired in 2008.
Id. He was released on $3000 bond and surrendered
his expired Republic of Kenya passport. Id.
Petitioner was later arrested on March 8, 2016 on a warrant
for possession of marijuana, and ICE officials subsequently
issued him an I-340 form ordering him to appear on March 31,
2016 at the Department of Homeland Security office in
downtown St. Louis. (Doc. 1 at 2-3). Petitioner complied with
the order, and March 31, 2016 his bond was revoked, he was
taken into custody, and he was detained in Pulaski County
Detention Center, where he remained at least until the date
he filed this Petition. (Doc. 1 at 3). Petitioner lost his
asylum case June 14, 2015, on which date a decision was
issued ordering Petitioner be removed from the United States.
Id. Petitioner's leave to appeal expired July
14, 2016, on which date his order of removal was finalized.
Id. On October 5, 2016, ICE conducted its first
90-days post-order custody review of the Petitioner's
case, in which Petitioner's Deportation Officer
recommended he be released on an order of supervision.
Id. On October 7, 2016, the Chicago Field Office
Director Ricardo A. Wong issued a decision to continue
Petitioner's detention. (Doc. 1 at 4). On January 27,
2017, the Director of the Department of Homeland Security
Headquarter Post-Order Detention Unit Floyd S. Farmer also
issued a decision to continue Petitioner's detention.
Id. To date, Petitioner has not yet been removed
from the United States, and he remains in detention pending
removal. (Doc. 1 at 5). Petitioner now challenges his ongoing
detention in this habeas corpus action filed March 3, 2017
under 28 U.S.C. § 2241. (Doc. 1).
habeas petition alleges that his ongoing detention violates
certain constitutional provisions and the Supreme Court's
interpretation of 8 U.S.C. § 1231(a)(6) in Zadvydas
v. Davis, 533 U.S. 678 (2001). The Court's
preliminary review of Petitioner's Petition suggests that
it cannot be dismissed at the screening stage, so the
Petition will proceed past preliminary review. However,
Petitioner has named a number of defendants that are not
proper in a § 2241 action. In Kholyavskiy v.
Achim, 443 F.3d 946, 952-53 (7th Cir. 2006), the Seventh
Circuit held that an immigration detainee raising substantive
and procedural due process challenges to his
“confinement while awaiting removal” could only
name the person who has immediate custody of him during his
detention, and not high-level ICE officials or the Attorney
General. Accordingly, all defendants other than the Warden of
the Immigration Detention Facility will be dismissed from
has filed a Motion to Appoint Counsel (Doc. 2) which is
hereby REFERRED to Magistrate Judge Clifford J. Proud for
has filed a “Petition to Stop I.C.E.-D.H.S.
Transferring the Detainee from Southern District Courts
Jurisdiction” (Doc. 3), which is hereby REFERRED to
Magistrate Judge Clifford J. Proud for consideration.
HEREBY ORDERED that Petitioner's Petition for a writ of
habeas corpus shall proceed past preliminary screening.
FURTHER ORDERED that LORETTA LYNCH, JEFF CHARLES JOHNSON,
RICARDO A. WONG, and SOUTHERN DISTRICT OF ILLINOIS FIELD
OFFICE are hereby DISMISSED from this action.
FURTHER ORDERED that the Warden of the Immigration Detention
Facility shall answer Petitioner's Petition within thirty
days of the date this Order is entered (on or before April 6,
2017). This Order to respond does not preclude
the respondent from making whatever waiver, exhaustion, or
timeliness arguments it may wish to present to the Court.
Service upon the Warden of the Immigration Detention