The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GURPREET MICHAEL SINGH,
Petitioner,
v. Case No. 3:20-cv-899-TJC-MCR
MERRICK GARLAND,1
et al.,
Respondents.
________________________________
ORDER
Petitioner, Gurpreet Singh, a native and citizen of India, initiated this
action on July 1, 2020, by filing a pro se Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2241 in the Northern District of Florida. See Doc. 1.
Thereafter, the Honorable William Stafford, Senior United States District
Judge, transferred the Petition to this Court. See Doc. 5. Petitioner contends
that the United States Department of Homeland Security, Immigration and
1 Petitioner sues William Barr in his official capacity as United States
Attorney General and John Kelly in his official capacity as Secretary of the
Department of Homeland Security, positions they no longer hold. Merrick
Garland is the current United States Attorney General and Alejandro
Mayorkas is the current Secretary of DHS. Therefore, pursuant to Rule 25(d)(1)
of the Federal Rules of Civil Procedure, Merrick Garland and Alejandro
Mayorkas are substituted as the proper party Respondents. The Clerk is
directed to make the appropriate entries on the docket to reflect the
substitutions.
Customs Enforcement (ICE) has unlawfully detained him longer than the
reasonable post-removal period. See Doc. 1 at 1-3 (citing Zadvydas v. Davis, 533
U.S. 678 (2001)). He states ICE took him into custody on September 24, 2019,
and an immigration judge entered an order of removal on October 2, 2019. Id.
at 3. He further asserts that his 180-day reasonable post-removal-detention
period ended on April 21, 2020. Id. at 6. According to Petitioner, because there
is no significant likelihood of his deportation or removal in the foreseeable
future, due process principles mandate that he be released under supervision.
Id. at 4-7.
On November 17, 2020, Respondents filed a Motion to Dismiss arguing
that Petitioner prematurely initiated this action. Doc. 11. They do not contest
that on September 24, 2019, ICE took custody of Petitioner, and that an
immigration judge entered a removal order on October 2, 2019. Id. at 2.
According to Respondents, however, Petitioner appealed the October 2, 2019,
removal order, and on June 22, 2020, the Board of Immigration Appeals (BIA)
“remanded the case back to the immigration judge to prepare a full decision and
return the record back to the BIA for further review.” Id. at 2. They assert that
the immigration judge complied with the BIA’s directive and issued a second
removal order on July 9, 2020, which Petitioner again appealed. Id. (citing Doc.
11-3 at 2). According to Respondents, the BIA is still reviewing the July 9, 2020,
removal order. Doc. 11 at 2. They argue that because the removal period will
begin on the date that the BIA resolves Petitioner’s pending appeal, this action
is premature and should be dismissed.2 Id. at 4.
Respondents are correct that for immigration detainees who are not
incarcerated pursuant to a criminal judgment and sentence,3 the detainee’s
“removal period” begins on the later of either the date on which the order of
removal becomes administratively final, or the date of the final order of a
reviewing court. See 8 U.S.C. § 1231(a)(1)(B); see also 8 C.F.R. § 1241.1(a)-(f)
(outlining the procedural circumstances that render a removal order final). At
the time Petitioner initiated this action and when Respondents filed their
Motion, the BIA had not yet issued a decision in Petitioner’s appeal of the
immigration judge’s removal order. See Doc. 11-3 at 2. However, a review of the
BIA’s website shows that on December 7, 2020, the BIA dismissed Petitioner’s
appeal. See Executive Office for Immigration Review, Automated Case
Information (available at www.justice.gov/eoir/board-of-immigration-appeals
last visited Apr. 6, 2021). As such, Petitioner’s order of removal became final
2 Petitioner was given an opportunity to file a reply to Respondents’
Motion, but he declined to do so.
3 The Court notes that on September 5, 2019, a few days before ICE took
custody of him, Petitioner was convicted of two state court crimes and sentenced
to two probationary terms. See Doc. 11-2. Although the Attorney General
typically may not remove an alien serving a criminal sentence of incarceration,
a probationary sentence “is not a reason to defer removal.” See 8 U.S.C. §
1231(a)(4)(A). Thus, the finalization of Petitioner’s removal order is likely
unaffected by his probationary sentences.
and his “removal period” began on December 7, 2020. See 8 C.F.R. § 1241.1(a)
(“An order of removal made by an immigration judge . . . shall become final []
“[u]pon dismissal of an appeal by the Board of Immigration Appeals. . . .”).
Although the finalization of Petitioner’s removal order may deem
Respondents’ underlying argument moot, the Court finds that the Petition is
still due to be dismissed as premature. After an order of removal is final, ICE
is required to make every effort to remove the alien within a reasonable time.
Zadvydas, 533 U.S. at 701. In Zadvydas, the Supreme Court concluded that six
months is a presumptively reasonable period to detain a removable alien
awaiting deportation. Id. As such, “[a] six-month custodial period of time
following the order of removal must have elapsed prior to the filing of a habeas
petition challenging confinement under Zadvydas.” Fahim v. Ashcroft, 227 F.
Supp. 2d 1359, 1363 (N.D. Ga. 2002) (citing Akinwale v. Ashcroft, 287 F.3d
1050, 1052 and n.3 (11th Cir. 2002)) (emphasis added). See also Aleman v. Jeff
Sessions, No. 3:18-cv-1129-J-32JBT (M.D. Fla. Sept. 24, 2018); Metellus v.
Holder, No. 3:11-cv-372-J-34JBT, 2011 WL 1740187, at *1 (M.D. Fla. May 5,
2011) (recognizing Eleventh Circuit determined six-month period must have
expired at time the petition raising Zadvydas claim is filed).
Approximately four months have elapsed since Petitioner’s order of
removal became final. Therefore, Petitioner’s request for relief is premature. If
Petitioner remains in ICE custody after June 7, 2021, he can file a Petition for
Writ of Habeas Corpus at that time.
Accordingly, it is
ORDERED AND ADJUDGED:
1. The Petition (Doc. 1) is DISMISSED without prejudice as
prematurely filed.
2. Respondents’ Motion to Dismiss (Doc. 11) is DENIED as moot.
3. The Clerk of Court shall enter judgment accordingly and close this
case.
3. If Petitioner appeals the dismissal of the case, this Court denies a
certificate of appealability.4 Because this Court has determined that a
certificate of appealability is not warranted, the Clerk shall terminate from the
pending motions report any motion to proceed on appeal as a pauper. Such
termination shall serve as a denial of the motion.
4 The Court should issue a certificate of appealability only if a petitioner
makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make this substantial showing, Petitioner “must demonstrate
that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues
presented were ‘adequate to deserve encouragement to proceed further,’”
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 n.4 (1983)). Upon due consideration, the Court will deny a
certificate of appealability.
DONE AND ORDERED at Jacksonville, Florida, this 16th day of April,
2021.
□□□ Limothy Corrigan
Ww TIMOTHY J. CORRIGAN
United States District Judge
Jax-7
C: Gurpreet Michael Singh, A# 065-998-045
Counsel of record