Federal District Court Opinions


Petitioner, v. MICHAEL CHERTOFF, et al., Respondents. Civil
Action No. 06-2454 (JAP). United States District Court, D.
New Jersey. December 4, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Petitioner pro se, Michel Concean, Alien No.
90-264-692, Middlesex County Adult Correctional Center, New
Brunswick, NJ.

Counsel for Respondents, Colette R. Buchanan, Asst. U.S.
Attorney, Newark, NJ.


JOEL PISANO, District Judge

Petitioner Michel Concean, an alien confined at Middlesex
County Adult Correctional Center, has submitted a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2241.[fn1] The respondents are Secretary of Homeland
Security Michael Chertoff, Page 2 Warden Edmond C. Cicchi,
and John P. Carbone, Acting Field Office Director of the
Bureau of Immigration and Customs Enforcement in Newark,
New Jersey.


Petitioner is a native and citizen of Haiti whose status
was adjusted to that of lawful permanent resident in 1990.
On December 3, 2004, Petitioner was convicted in the
Superior Court of New Jersey, Mercer County, of one count
of Possession of a Controlled Dangerous Substance with
Intent to Distribute On or Near School Property, in
violation of N.J.S.A. 2C:35-7, and one count of Theft by
Unlawful Taking, in violation of N.J.S.A. 2C:20-3.

Based on those convictions, the Department of Homeland
Security, Bureau of Immigration and Customs Enforcement
charged Petitioner with being subject to removal.
Petitioner was taken into BICE custody on the removal
charges on July 19, 2005.

An Immigration Judge denied Petitioner’s application for
deferral of removal under the Convention Against Torture
and ordered Petitioner removed to Haiti. Petitioner
appealed the IJ’s decision to the Board of Immigration
Appeals, which affirmed by order issued January 27, 2006.
At that time, the Order of Removal became final.

On May 31, 2006, this Court received Petitioner’s Petition
for writ of habeas corpus, dated May 30, 2006. Petitioner
Page 3 challenges his indefinite detention pending removal.
Petitioner contends that his removal is not reasonably
foreseeable because “Haiti has adopted a new policy of not
accepting criminal deportees and shows no sign of changing
that policy any time soon.” (Memorandum in Support of
Petition at 3-4.)


Post-removal-order detention is governed by 8 U.S.C.
§ 1231(a). Section 1231(a)(1) requires the Attorney
General to attempt to effectuate removal within a 90-day
“removal period.”

The 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).

Section 1231(a)(6) permits continued detention if removal
is not effected within 90 days. However, the Supreme Court
has held that such post-removal-order detention is subject
to a temporal reasonableness standard. Specifically, once a
presumptively reasonable six-month period of
post-removal-order detention has passed, a resident alien
must be released if he can establish that his removal is
not reasonably foreseeable. See Zadvydas v. Page 4 Davis,
533 U.S. 678 (2001); Clark v. Martinez, 543 U.S. 371

Thus, the alien bears the initial burden of establishing
that there is “good reason to believe that there is no
significant likelihood of removal in the reasonably
foreseeable future,” after which the government must come
forward with evidence to rebut that showing. Zadvydas, 533
U.S. at 699-701. But see 8 U.S.C. § 1231(a)(1)(C)
(“The removal period shall be extended beyond a period of
90 days and the alien may remain in detention during such
extended period if the alien fails or refuses to make
timely application in good faith for travel or other
documents necessary to the alien’s departure or conspires
or acts to prevent the alien’s removal subject to an order
of removal.”)

Federal courts disagree as to the extent to which the
passage of time can suffice to meet the alien’s burden.
Compare Fahim v. Ashcroft, 227 F.Supp.2d 1359, 1365-68
(N.D. Ga. 2002) (mere passage of time insufficient to meet
alien’s burden of proof), with Seretse-Khama v. Ashcroft,
215 F.Supp.2d 37, 48-54 (D.D.C. 2002) (continued detention
for over three years, coupled with eight-month delay since
INS last contacted destination country, suffices to meet
alien’s burden); Lema v. U.S. I.N.S., 214 F.Supp.2d 1116,
1118 (W.D. Wash 2002), aff’d on other grounds, 341 F.3d 853
(9th Cir. 2003) (where destination Page 5 country’s lack
of response to request for travel documents is combined
with INS inability to explain silence and absence of any
indication that situation may change, continued detention
would be unreasonable but, where destination country’s
failure to respond suggests nothing more than “bureaucratic
inertia,” removal remains “foreseeable”).[fn2]

In addition, in assessing whether an alien has made the
required showing, it must be remembered that, while the
Supreme Court in Zadvydas emphasized that the expiration of
the six-month presumptively reasonable period of detention
did not mandate release, it also stated that as the period
of detention grows “what counts as the `reasonably
foreseeable future’ conversely shrinks.” 533 U.S. at 701.

Here, Petitioner has not suggested any individual barriers
to his repatriation, see Zadvydas, 533 U.S. at 684-85
(alien Page 6 petitioner Zadvydas was a “stateless”
individual) but, instead, has argued that there is an
institutional barrier to his removal, see Zadvydas, 533
U.S. at 686 (alien petitioner Kim Ho Ma was from Cambodia,
a country with which the United States has no repatriation
agreement), specifically, that the government of Haiti is
not accepting repatriation of criminal aliens.

The BICE has requested travel documents for Petitioner
twice, in February and September 2006. Apparently, no such
travel documents have been issued by the government of
Haiti. However, the record reflects mere inaction, not a
refusal to issue documents.

In addition, the Declaration of Detention and Deportation
Officer Rosalio Estrada states that the BICE has been
successful in repatriating Haitian citizens. In fiscal year
2005, BICE repatriated 1,022 Haitian citizens; thus far in
fiscal year 2006, BICE has repatriated 229 criminal
Haitians. The most recent repatriation flight left for
Haiti on November 13, 2006, and resulted in the
repatriation of 24 Haitian nationals. Although Respondents
do not indicate that travel documents have been issued for
Petitioner, Rosalio Estrada states that Petitioner “will be
scheduled to be on one of the next repatriation flights to
Haiti.” (Declaration of Rosalio Estrada, ¶ 6.)

Finally, to the extent Petitioner relies on the passage of
time as an indicator that his removal is not likely in the
Page 7 reasonably foreseeable future, he had not been in
custody for even the presumptively reasonable period of six
months at the time he filed the Petition and he has not
supplemented the Petition with any information to suggest
that the passage of time demonstrates that his removal is
unlikely, especially when considered in conjunction with
the information regarding repatriation flights to Haiti.

Accordingly, there do not appear to be any individual or
institutional barriers to Petitioner’s removal in the
reasonably foreseeable future. The Petition is therefore
denied, without prejudice to Petitioner’s filing a future
petition should circumstances warrant.


For the reasons set forth above, the Petition will be
denied. An appropriate order follows.

[fn1] Section 2241 provides in relevant part:

(a) Writs of habeas corpus may be granted by the Supreme
Court, any justice thereof, the district courts and any
circuit judge within their respective jurisdictions.

(c) The writ of habeas corpus shall not extend to a
prisoner unless . . . (3) He is in custody in
violation of the Constitution or laws or treaties of the
United States . . .

[fn2] See also Kacanic v. Elwood, 2002 WL 31520362 (E.D. Pa.
2002) (passage of one year, coupled with inaction of
foreign embassy and INS admission that efforts to obtain
travel documents have been “fruitless,” suffices to meet
alien’s burden); Khan v. Fasano, 194 F.Supp.2d 1134,
1136-37 (S.D. Cal. 2001) (where alien has been in
post-removal order custody for ten months, and meeting is
scheduled with destination country to discuss request for
travel documents, delay alone is not sufficient to meet
alien’s burden; however, alien granted leave to refile
petition in six months’ time if his removal has not then
been effectuated); Okwilagwe v. INS, No. 3-01-CV-1416-BD,
2002 WL 356758 (N.D. Tex. Mar. 1, 2002) (passage of eleven
months without action by destination country sufficient to
meet alien’s burden, even where destination country orally
promised travel documents “in a few days,” but failed to
provide them over period of two months).