Farah v. Meade

United States District Court

for the

Southern District of Florida

Hassan Mohamed Farah, Petitioner, )

)

v. )

)

Michael W. Meade, Field Office ) Civil Action No. 20-22074-Civ-Scola

Director, Miami Field Office, U.S. )

Immigration and Customs )

Enforcement, and others, )

Respondents. )

Order Denying Petition

Petitioner Hassan Mohamed Farah has filed a petition for a writ of

habeas corpus under 28 U.S.C. § 2241 (Pet., ECF No. 1). Farah contends his

continued detention, in Immigration and Customs Enforcement custody,

violates his due process rights under the Fifth Amendment. (Pet. at ¶ 1.) In

response, the Government argues Farah’s detention is governed by 8 U.S.C. §

1231 and is statutorily permitted and lawful under the Fifth Amendment.

(Gov’t’s Ret. 5, ECF No. 13.) After review, the Court agrees with the

Government and denies Farah’s petition, dismissing his case, without

prejudice, as prematurely filed.

1. Background and Procedural History1

Farah is currently detained at the Krome Detention Center in Miami,

Florida. He is a native and citizen of Somalia but has lived in the United States

since entering in 1996, as a refugee, when he was sixteen. Farah is married to

a United States citizen and has nine children, ranging in age from six to

twenty-one.

In 2004, Farah was convicted of fleeing from and assault on a police

officer, in Minnesota. Based on that conviction, Farah was sentenced to a year

and a day in prison. As a result of these convictions, Farah was thereafter

taken into ICE custody, on November 27, 2006, having been served with a

notice to appear, charging him with removability under 8 U.S.C. §

1182(a)(2)(A)(i), as an alien who has been convicted of a crime involving moral

turpitude, and 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an alien who is not in possession

of a valid entry document. In December 2006, an immigration judge ordered

1 Unless otherwise noted, the facts set forth below are undisputed.

him removed to Somalia. Thereafter, in June 2007, Farah was released on an

order of supervision.

Over ten years later, on October 16, 2017, Farah was taken into ICE

custody and, on December 7, 2017, was placed on a chartered deportation

flight to Somalia. The plane spent two days in the air and on the ground in

Senegal, before returning to the United States. For the purposes of the instant

motion, the Government does not dispute Farah’s description of the deplorable

conditions suffered by the detained passengers on that flight: for the duration

of the trip, the detainees were restrained in five-point shackles and not allowed

to move, sleep, or use the bathroom. Farah is now a part of a class action, filed

in federal court in this district, related to that flight. Ibrahim v. Acosta, 2018

WL 582520 (S.D. Fla. Jan. 26, 2018) (Gayles, J.).

While the class action litigation was pending, Farah filed a motion to

reopen his removal proceedings with the immigration court. In July 2018, the

immigration judge granted his motion and allowed Farah to pursue relief from

removal. Upon the reopening of his case, ICE amended Farah’s notice to appear

to include the following additional criminal convictions: a December 2008

conviction for interfering with a 911 call; and 2015 convictions for second-

degree assault and fifth-degree drug possession. Although Farah maintains, in

his traverse, that he disputes the Government’s claim that he was afforded a

bond hearing, in his petition he also says his counsel “obtained the audio

recording of the bond hearing . . . but has been unable to obtain transcription.”

(Pet. at ¶ 6 n. 2.) In his petition he also says the immigration judge “refused to

consider bond . . . as Mr. Farah was subject to mandatory detention pursuant

to 8 U.S.C. §1226(c).” (Id. at ¶ 6.) According to the Government, on August 9,

2018, an immigration judge denied bond, “finding [Farah] subject to mandatory

detention and also a danger to the community.” (Ret. at 3.)

Regardless, in a written order, dated October 30, 2018, the immigration

judge denied Farah’s application for relief and ordered him removed to Somalia.

Farah appealed the decision to the Board of Immigration Appeals which

dismissed the appeal on May 30, 2019. Immediately thereafter, the

Government initiated the process of obtaining a new travel document for Farah,

which Somalia issued in October 2019. ICE then scheduled Farah for a

removal flight to Somalia in December 2019.

In the meantime, Farah filed a petition for review with the United States

Court of Appeals for the Eleventh Circuit, challenging the BIA’s May 30, 2019,

final removal order. Farah says he sought a stay of his removal from the

Eleventh Circuit, on July 3, 2019, which he claims was denied “[a]fter ICE

represented that it had no plans to remove” him. (Pet. at ¶¶ 10, 41.) As the date

of his scheduled flight drew near, however, Farah filed another motion for a

stay of removal, this time on an emergency basis. The Eleventh Circuit granted

the stay on December 3, 2019. Farah filed the instant petition on May 18,

2020. Farah’s stay and appeal to the Eleventh Circuit remain pending.

2. Analysis

Farah complains that under either 8 U.S.C. § 1226 or 8 U.S.C. § 1231,

his prolonged detention, since October 2017, violates the due process clause of

the Fifth Amendment, “particularly in light of his meritorious arguments

against removal on appellate review, his current stay of removal, and the

unlikely possibility of future removal.” (Pet. at ¶¶ 16, 34.) The Government

counters Farah’s detention is governed solely by 8 U.S.C. § 1231, based on

Eleventh Circuit precedent, and that his prolonged detention, under the facts

of this case, is not unreasonable. The Court finds no reason to depart from the

Eleventh Circuit’s indication that § 1231 applies in this context and that

Farah’s request for a stay has interrupted his detention period.

The Eleventh Circuit, in Akinwale v. Ashcroft, 287 F.3d 1050, 1052 n. 4

(11th Cir. 2002), applied § 1231 to a situation analogous to Farah’s: where a

detainee had sought a stay of removal while simultaneously challenging his

removal order in the appellate court and seeking § 2241 relief in the district

court. The Akinwale opinion also found that the running of the clock for

removal is “interrupted” when a detained alien seeks a stay of his removal. Id.

Until or unless the Eleventh Circuit directs otherwise, the Court follows this

framework. See Thompson v. Horton, 419CV00120AKKHNJ, 2019 WL 4750072,

at *1 (N.D. Ala. Sept. 30, 2019) (recognizing that “many district courts within

the Eleventh Circuit, as well as several unpublished Eleventh Circuit opinions,

have treated Akinwale’s use of § 1231 and footnote 4 as precedent”).

Under § 1231, then, the Attorney General is afforded a ninety-day period

to effectuate removal following the entry of a final order of removal. 8 U.S.C. §

1231(a)(1)(B). Detention is mandatory during this ninety-day period. 8 U.S.C. §

1231(a)(2). This removal period may be extended, beyond the ninety days, while

the alien remains detained, “if the alien . . . acts to prevent [his] removal.” 8

U.S.C. § 1231(a)(1)(C). Further, under various listed circumstances, the

Attorney General may continue to detain an alien after the expiration of this

ninety-day removal period as well. 8 U.S.C. § 1231(a)(6).

Under the United States Supreme Court’s ruling in Zadvydas, § 1231(a)

authorizes detention for a period reasonably necessary to accomplish an alien’s

removal. Zadvydas v. Davis, 533 U.S. 678, 689 (2001). To that end, the court

in Zadvydas determined that ICE maintains the authority to continue

detention where the detention fairly aids the government in its legitimate efforts

to remove individuals with final orders of removal. Id. at 701. This continued

detention, under Zadvydas, is presumptively reasonable if it does not extend

beyond six months. Id. Once the six months has lapsed, however, and “the

alien provides good reason to believe that there is no significant likelihood of

removal in the reasonably foreseeable future, the Government must [then]

respond with evidence sufficient to rebut that showing.” Id.; see also Akinwale,

287 F.3d at 1052 (“[I]n order to state a claim under Zadvydas the alien not only

must show post-removal order detention in excess of six months but also must

provide evidence of a good reason to believe that there is no significant

likelihood of removal in the reasonably foreseeable future.”).

Farah acknowledges seeking a stay, before the Eleventh Circuit, of his

removal on July 3, 2019, which, he says, was denied when the Government

represented it had no pending plans, at that time, to remove him. (Pet. at ¶ 10.)

Thereafter, on November 25, 2019, when the Government apparently shifted

course and Farah’s removal was imminent, Farah sought, on an emergency

basis, another stay. The Eleventh Circuit granted the stay on December 3,

2019. Farah does not dispute that his removal would likely have occurred, in

December 2019, but for his decision to file an emergency motion to stay his

removal.

Based on this sequence of events, the Court finds, under Akinwale,

Farah “interrupted” the running of the six-month clock when he sought a stay

on July 3, 2019. Akinwale, 287 F.3d at 1052 n. 4 (finding a detainee had

“interrupted the running of time under Zadvydas by moving . . . for a stay of

deportation in his prior appeal”); see also Guo Xing Song v. U.S. Atty. Gen., 516

F. App’x 894, 899 (11th Cir. 2013) (finding “[t]he six-month period is tolled . . .

if the alien acts to prevent his removal”); Gozo v. Napolitano, 309 F. App’x 344,

346 (11th Cir. 2009) (noting the petitioner “interrupted the running of time

under Zadvydas when he simultaneously challenged issues related to his

removal order and his post-removal period detention”) (cleaned up).2 Or, if the

clock was not “interrupted,” Farah prevented his timely removal when, on

November 25, 2019, he sought an emergency stay when his removal appeared

imminent. Until the stay Farah himself requested is lifted, ICE’s continued

detention of him, pending his removal, without more, cannot be considered a

denial of due process. See, e.g., Evangelista v. Ashcroft, 204 F. Supp. 2d 405,

409 (E.D.N.Y. 2002) (noting the petitioner was “not being held indefinitely

beyond the removal period,” but instead was “being held pursuant to a stay . . .

he ha[d] requested”); Barua v. Aviles, CV 15-3768 (ES), 2016 WL 4161099, at

2 The Court uses (cleaned up) to indicate that internal quotation marks, alterations, or

citations have been omitted from quotations. See, e.g., Durham v. Rural/Metro Corp.,

955 F.3d 1279, 1285 (11th Cir. 2020).

*3 (D.N.J. Aug. 4, 2016) (holding “where an alien’s challenge to a removal order

prevents his removal, Zadvydas’/s] presumptively reasonable six-month period

is tolled”); Jackson v. Johnson, 3:15-CV-2046, 2015 WL 6501304, at *2 (M.D.

Pa. Oct. 27, 2015) (finding a petitioner’s “continued detention,” under § 1231,

“not in violation of his due process rights as long as his removal is reasonably

foreseeable” while noting the petitioner had “provided no evidence that ICE or

the Department of Homeland Security will be unable to remove him within a

reasonable time following the resolution of his petition for review”) (emphasis

supplied here).

3. Conclusion

Accordingly, after careful consideration of the filings and record in this

case, the Court denies Farah’s petition for a writ of habeas corpus and

dismisses this case, without prejudice. Accordingly, the Court denies as

moot Farah’s motion for an expedited hearing (ECF No. 15). The Court also

denies Farah’s request for discovery: this request was improperly inserted

within Farah’s traverse (ECF No. 14) and, in any event, is mooted by the

Court’s ruling.

The Clerk is directed to close this case. The Court also denies as moot

any other pending motions.

Done and ordered, in chambers at Miami, Florida, on July 15, 2020.

foe N. fA Jr.

United States District Judge