Background reading in the matter of Suzi Hazahza’s imprisonment–gm
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
RADI HAZAHZA, #A95-219-510, et al.
Petitioners,
v.
MICHAEL CHERTOFF, et al.,
Respondents.
3:07-CV-0327-D
ECF
ORDER SETTING ORAL ARGUMENT
Pursuant to the provisions of 28 U.S.C. §636(b), and an order of the District Court filed on February 21, 2007, this case has been referred to the United States Magistrate Judge.
This is a petition for habeas corpus relief filed by five detainees of the Bureau of Immigration and Customs Enforcement (ICE) pursuant to 28 U.S.C. § 2241, et seq. Petitioners (a father and four of his five children, who are Stateless individuals either born within the
Palestinian Territories or of Palestinian ethnicity born in Jordan) are presently confined at the Rolling Plains Detention Center in Haskell, Texas. In this action, they challenge their continued detention pending removal and the conditions of their detention.1
In response to this Court’s expedited order to show cause, Respondents filed a response seeking dismissal of the habeas corpus petition. Petitioners filed a reply objecting thereto.
The Court now sets this case for oral argument on the issues set out below.
In this action Petitioners challenge their continued detention. The detention, release, and removal of aliens subject to a final order of removal is governed by § 241 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231. Section 1231(a)(1)(A) provides that, after entry of an order of removal, “the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the ‘removal period’).” See also 8 C.F.R. § 241.3. That 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. § 1231(a) (1)(B)(i)-(iii). During the 90-day removal period, the alien must be detained. 8 U.S.C. § 1231(a)(2). After the ninety-day period, if the alien does not leave or he has not been removed, he must be released under the supervision of the Attorney
General. 8 U.S.C. § 1231(a)(3). Such supervision includes requiring the alien to periodically appear before an immigration officer for identification, to submit to medical and psychiatric exams, to give other personal information under oath, and to obey reasonable written restrictions on the alien’s conduct or activities. 8 U.S.C. § 1231(a)(3)(A)-(D)).
Under limited circumstances, certain aliens may be detained beyond the removal period. 8 U.S.C. § 1231(a)(6), which pertains to “inadmissible or criminal aliens,” provides: that the Attorney General may detain beyond the 90-day removal period aliens who are inadmissible, aliens who have committed aggravated felonies, aliens who are otherwise
dangerous, and aliens who are a flight risk.2
In this action, Respondents rely on § 1231(a)(6) as the basis for Petitioners’ detention, contending they are a flight risk.3
1. Whether Petitioners Are a Flight Risk Under § 1231(a)(6)
Respondents argue that Petitioners may be detained beyond the removal period under § 1231(a)(6) because they are unlikely to comply with the final removal order due to their failure to appear for an appointment with ICE officials on July 1, 2005. (Respondent’s Response at 3). Petitioners dispute ever receiving form G-56, which notified Petitioners of the July 1, 2005 appointment, and which according to Respondents was mailed to their home address and their former attorney.
At oral argument, the parties should address whether Petitioners are a flight risk because they failed to appear for the July 1, 2005 appointment. In this connection, the parties should address the mailing and receipt, if any, of Form G-56, and or any other source which informed Petitioners of the July 1, 2005 appointment.
2. Continued Detention Under § 1231(a)(6)
A. Whether the Habeas Corpus Petition is Premature
Relying on Zadvydas v. Davis, 533 U.S. 678 (2001), Respondents contend that Petitioners’ detention under § 1231(a)(6) is presumptively reasonable for six months, or until early May 2007. Thus, they contend the petition is premature and should be dismissed.
In Zadvydas, the Supreme Court stated that it recognized a six-month period “for the sake of uniform administration in the federal courts.” Id. at 700-701. Although not expressly stated, the Supreme Court viewed the six-month period to include the 90-day removal period plus 90 days thereafter. Akinwale v. Ashcroft, 287 F.3d 1050, 1052 and n. 3 (11th Cir. 2002) (collecting cases at note 3).
In this case, the 90-day removal period expired long before Petitioners were apprehended. It, thus, appears unreasonable to require that the initial 90-day removal period be part of the six-month presumptive period recognized by the Supreme Court in connection with detention under § 1231(a)(6).
Respondents rely on Vulaj v. Baker, 2006 WL 325326 (E.D. Mich. Nov. 8, 2006), to argue that the six-month period of reasonable detention cannot be triggered until a petitioner is actually detained under § 1231(a)(6). In Vulaj, the order of removal became administratively final on May 17, 2002, when the BIA affirmed the immigration judge’s order of removal and
granted Petitioner thirty days to voluntarily department. The petitioner did not appeal and did
not depart voluntarily. On September 25, 2006, the petitioner was arrested. The court held that
“[u]nder § 1231(a)(6) his detention [was] mandatory for 90 days, and it [was] presumptively reasonable for up to six months under Zadvydas.” The court further held that “because Petitioner ha[d] only been in custody since September 25, 2006, his petition for writ of habeas corpus [was] premature.”4
Petitioners rely on Ulysse v.Dept’ of Homeland Security, 291 F.Supp.2d 1318 (M.D. Fla. 2003), which rejected ICE’s assertion that the 90-day removal period under § 1231(a)(1) begins when a petitioner is taken into custody. While this Court finds the Ulysse decision persuasive, it was limited to detention during the initial 90-day- removal period under § 1231(a)(1). The Ulysse court specifically noted that ICE did not suggest that the petitioner had committed any crimes, was dangerous, or posed a flight risk to justify detention under § 1231(a)(6). Id. at 1325 and n. 12.
At oral argument, the parties should address in details whether the presumptive period of detention under § 1231(a)(6) is always six months, or whether it should be reduced to 90 days in cases, such as this, where the 90-day removal period expired long before Petitioners’ detention.
B. Whether Petitioners Have Made a Sufficient Showing of No Significant
Likelihood of Removal in the Reasonably Foreseeable Future, and Whether Respondents Can Rebut that Showing
Zadvydas provides that if the alien has not been removed within six months and removal is no longer reasonably foreseeable, continued detention under § 1231(a)(6) is not authorized.
Id., 533 U.S. at 699. The alien may petition the court for release if he can show that there is no
significant likelihood of his removal in the foreseeable future. Id at 701. The Government is then required to rebut the showing with evidence. Id.
In its February 2, 2007 Decision to Continue Detention, ICE informed Petitioners that a “request for a travel document was forwarded to the Embassy of Israel.” (Petition at Exh. 17).
Petitioners allege that Respondents cannot obtain travel documents from Israel – a country of which they are not citizens nor to which they have been ordered removed. (Petitioner’s Reply at 7). In support, they cite Yassir v. Ashcroft, 111 Fed. Appx. 75, *2 (3d Cir. 2004) (in which it was noted that under the Oslo Accord between Palestinians and Israelis, no travel documents can be issued for any person who does not have official Israeli or Palestinian identification), and
Abdel-Muhti v. Ashcroft, 314 F.Supp.2d 418, 425-27 (M.D. Pa. 2004) (noting that new procedures regarding Palestinian repatriation were agreed upon in early March 2004 between U.S. and Israel officials).
At oral argument, the parties should address whether Petitioners have made a sufficient showing of no significant likelihood of removal in the reasonably foreseeable future, and whether respondents can rebut that showing.
IT IS THEREFORE ORDERED that this case is set for oral argument at 10:00 a.m. on March 29, 2007, before the undersigned United States Magistrate Judge.
A copy of this order shall be transmitted to counsel for Petitioners, and counsel for Respondents.
Signed this 15th day of March, 2007.
PAUL D. STICKNEY
UNITED STATES MAGISTRATE JUDGE
1 Nazmeih Juma, wife of Petitioner Radi Hazahza and mother of the remaining Petitioners, was released by ICE on February 6, 2007, along with her minor son, Mohammed Hazahza.
2 Section 1231(a)(6) reads as follows:
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).
3 Contrary to Petitioners’ assertion, Respondents do not rely on the mandatory detention provision during the initial 90-day removal period found at 8 U.S.C. § 1231(a)(2). Nor do Respondents appear to contend that the removal period began to run when Petitioners were detained.
4 Respondents also rely on Cuevas-Rodriguez v. Chertoff, 2006 WL 1421032 (E.D. Mich. May 23, 2006). That case, however, is distinguishable because the alien was confined on the basis of a criminal conviction until April 24, 2006. Hence the removal period under § 1231(a)(1) did not begin until the date of his release from detention. See 8 U.S.C. §
1231(a)(1)(B)(iii).
Texas Civil Rights Review 
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