The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KENNETH JAMES, : No. 3:23-CV-1862
Petitioner :
: (Judge Munley)
V. :
CRAIG LOWE,
Respondent :
MEMORANDUM
Petitioner Kenneth James is an immigration detainee in the custody of the
United States Department of Homeland Security, Immigration and Customs
Enforcement (ICE). He is currently being detained at Pike County Correctional
Facility (PCCF) in Lords Valley, Pennsylvania. James commenced this action by
filing a petition for a writ of habeas corpus under 28 U.S.C. § 2241. He seeks
immediate release from detention. For the reasons that follow, the court will
deny James’ Section 2241 petition without prejudice.
I. BACKGROUND
James is a citizen and native of Dominica. (See Doc. 10-1 at 4, 6). He
became a lawful permanent resident of the United States on a conditional basis
in November 2003. (id. at 6). In August 2017, James was charged in the United
States District Court for the District of the Virgin Islands with conspiracy to
possess with intent to distribute cocaine, 21 U.S.C. § 846, and possession with
intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(ii)(II). (Id. at
16). In January 2018, James pled guilty to the conspiracy count and, on July 11,
2018, he was sentenced to 78 months’ incarceration. (Id. at 9-11, 25).
In November 2021, while still serving his federal sentence, James was
charged as removable under Section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(iii), and Section 237(a)(2)(B)(1) of
the INA, 8 U.S.C. § 1227(a)(2)(B)(i). (Doc. 10-2 at 4). On January 10, 2023, an
immigration judge found James removable; denied his applications for asylum,
withholding of removal under the INA, and withholding of removal under the
Convention Against Torture; and ordered James removed to Dominica. (Doc.
10-3 at 1-3). James did not appeal to the Board of Immigration Appeals, (see
Doc. 1 at 3-4), so his removal order became final on February 10, 2023. (See
Doc. 10-4 at 2 ¥ 4).
On March 1, 2023, James was released from the Bureau of Prisons’
custody into ICE custody pursuant to the immigration detainer lodged against
him. (See Doc. 1 at 2; Doc. 10-4 at 2 7 5). He was initially held at Clinton
County Correctional Facility but was transferred to PCCF three months later,
where he is currently detained. (Doc. 10-4 at 2 J 5).
The parties appear to agree that James is being detained pursuant to 8
U.S.C. § 1231(a)(6). (See Doc. 1 at 2 (noting that final order of removal was
issued and alleging that his detention exceeds presumptive “180[-]day time
period” for removal); Doc. 9 at 6; Doc. 14 at 2-3). James has been detained by
ICE for slightly less than fourteen months.
The gravamen of James’ habeas petition is that his removal to Dominica is
not “reasonably foreseeable” and therefore he should be released from ICE
detention until travel documents are available. {See Doc. 1 at 6-8). Respondent
timely responded to the Section 2241 petition. (See generally Docs. 9, 10).
James filed a traverse, (Doc. 14), and his Section 2241 petition is therefore ripe
for disposition.
ll. © STANDARD OF REVIEW
Under 28 U.S.C. § 2241(c), a prisoner or detainee may receive habeas
relief only if he “is in custody in violation of the Constitution or laws or treaties of
the United States.” See 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488,
490 (1989). Because James filed the instant petition while he was detained
within the jurisdiction of this court, is still currently detained by ICE, and asserts
that his continued detention violates due process, this court has jurisdiction over
his Section 2241 petition. See Zadvydas v. Davis, 533 U.S. 678, 699 (2001);
Spencer v. Kermna, 523 U.S. 1, 7 (1998).
lll. DISCUSSION
James brings an as-applied due process challenge to his continued
detention under Section 1231(a)(6). He argues that his removal to Dominica is
not reasonably foreseeable and therefore he should be released from detention
while he awaits deportation.
Section 1231(a) of Title 8 of the United States Code “governs the detention
release, and removal of individuals ‘ordered removed.” Johnson v. Arteaga-
Martinez, 596 U.S. 573, 578 (2022). Section 1231(a)(1)(A) provides that,
following entry of a final order of removal, the United States generally must
effectuate the noncitizen’s removal during a 90-day “removal period.” 8 U.S.C.
§ 1231(a)(1)(A). That 90-day period begins to run, for noncitizens who are
detained or confined for criminal offenses, on “the date the alien is released from
[non-immigration] detention or confinement.” Id. § 1231(a)(1)(B)(iii). Detention is
mandatory during this first 90 days. Id. § 1231(a)(2) (“During the removal period,
the Attorney General shall detain the alien.” (emphasis added)).
Following expiration of the 90-day removal period, certain noncitizens
“may” be detained if they fall into one of four distinct categories: “(1) those who
are ‘inadmissible’ on certain specified grounds; (2) those who are ‘removable’ on
certain specified grounds; (3) those [determined] ‘to be a risk to the community’;
and (4) those [determined] to be ‘unlikely to comply with the order of removal.”
Arteaga-Martinez, 596 U.S. at 578-79 (quoting 8 U.S.C. § 1231(a)(6)). How long
a noncitizen may be detained pursuant to Section 1231(a)(6) following the 90-
day removal period has been the subject of considerable litigation.
In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court held that
Section 1231(a)(6) “does not permit indefinite detention,” but rather “limits an
alien’s post-removal-period detention to a period reasonably necessary to bring
about that alien’s removal from the United States.” Zadvydas, 533 U.S. at 689.
Of course, the phrase “a period reasonably necessary to bring about that □□□□□□□
removal” provides no easily ascertainable guidelines. See Arteaga-Martinez, 59€
U.S. at 586 (Thomas, J., concurring in part); see also Guerrero-Sanchez v.
Warden York Cnty. Prison, 905 F.3d 208, 223-24 (3d Cir. 2018), abrogated on
other grounds by Johnson v. Arteaga-Martinez, 596 U.S. 573 (2022).' According
to Zadvydas, a period reasonably necessary to bring about a noncitizen’s
removal from the United States is presumptively six months. See Zadvydas, 533
U.S. at 701.
1 In Johnson v. Arteaga-Martinez, the Supreme Court abrogated the Third Circuit’s holding ir
Guerrero Sanchez that Section 1231(a)(6) presumptively “requires the Government to □□□□□
detained noncitizens bond hearings after six months of detention in which the Government bears
the burden of proving by clear and convincing evidence that a noncitizen poses a flight risk or 2
danger to the community.” Arteaga-Martinez, 596 U.S. at 576. The Court did not address the
merits of the petitioner's individualized Due Process Clause challenge or hold that such a claim
could not be pursued. See id. at 583-84. Moreover, the United States reassured the Arteaga-
Martinez Court that “as-applied constitutional challenges” to prolonged detention under Sectior
1231(a)(6) “remain available.” Id. at 583.
Thus, noncitizens detained under Section 1231(a)(6) past the six-month
presumptively constitutional period may bring an as-applied Due Process Clause
challenge to their continued detention should that detention become prolonged
and potentially unlawful. See Zadvydas, 533 U.S. at 699-701; Guerrero-
Sanchez, 905 F.3d at 225; see also Johnson v. Guzman Chavez, 594 U.S. 523,
529 (2021) (citing Zadvydas, 533 U.S. at 689, 701). If the noncitizen “provides
good reason to believe that there is no significant likelihood of removal in the
reasonably foreseeable future, the Government must either rebut that showing or
release the [noncitizen].”, Guzman Chavez, 594 U.S. at 529 (internal quotation
marks omitted) (citing Zadvydas, 533 U.S. at 701); see also 8 C.F.R. §§ 241.4,
241.13 (establishing agency procedures for determining whether noncitizens
detained under 1231(a) past 90-day removal period should be released on
supervision or remain in detention).
James alleges—without any evidence, support, or citation—that “ICE/DHS
only [djeported a total of 5 immigrants to the country of Dominica in 2022[.]”
(Doc. 14 at 1). Notably, he provides no context for this claim, e.g., how many
noncitizens were awaiting removal to Dominica in the United States in 2622.2 He
2 The court takes judicial notice that Dominica is a small (751 square kilometers) island countn
in the Caribbean Sea that has a population of less than 75,000 people. See CIA.Gov, The Worlc
Factbook, Dominica, https://www.cia.gov/the-world-factbook/countries/dominica/#people-and:
society (last visited Apr. 26, 2024).
argues that there is “no [c]ertainty as to when if ever [t]ravel [dJocuments will be
issued,” and speculates that it could take “years” for his removal. (Id. at 2).
Based on these unsupported contentions, he asks the court to order his
immediate release. (Id. at 3).
Respondent counters by asserting that ICE has consistently endeavored to
effectuate James’ removal. To wit: on February 23, 2023, the ICE Removal and
International Operations (RIO) team forwarded travel documents to the
Consulate of Dominica. (See Doc. 10-4 at 2 J 7). Over the course of the
following nine months, RIO followed up with the Consulate of Dominica eight
separate times regarding obtaining travel documents for James. (See id.)
Moreover, the Consulate of Dominica has advised RIO that travel documents will
be issued following approval from their capital, Roseau. (See id.)
In addition, Enforcement and Removal Operations (ERO) for ICE has
regularly reviewed James’ custody status, as required by 8 C.F.R. § 241.4(e), (f),
and (g). (See id. at 2-3 J 8; Doc. 10-5; Doc. 10-6). Following those reviews,
however, ICE has continued James’ detention on the ground that “his criminal
history supports the conclusion that he poses a danger to society and/or a risk of
flight,” and because his removal will take place “in the reasonably foreseeable
future.” (Doc. 10-4 at 2-3 J 8).
The court finds that James has failed to establish “good reason to believe”
that there is not a “significant likelihood of removal in the reasonably foreseeable
future.” Guzman Chavez, 594 U.S. at 529. His unsupported arguments and
speculation that it could take “years” to receive travel documents from Dominica
are insufficient to substantiate a constitutional violation. Such conclusory claims
could be made by nearly any noncitizen being detained under Section 1231(a)
and awaiting removal. Accordingly, James’ due process claim fails at the first
step and that is the end of the matter. See Castaneda v. Perry, 95 F.4th 750,
756, 760 & n.9 (4th Cir. 2024) (explaining that, if petitioner has not made the
required showing of “good reason to believe that there is no significant □□□□□□□□□□
of removal in the reasonably foreseeable future,” the petitioner's “claim fails and
we proceed no further’).
Even if James had carried his burden, Respondent has rebutted that
showing. ICE has followed up numerous times with the Consulate of Dominica
and, importantly, has received a response that final approval is pending. ICE has
also periodically reviewed James’ custody. In light of these facts, James’
approximate fourteenth-month detention is not so prolonged or without reason
that it violates due process. Cf. Saint Jacques v. Dep’t of Homeland Sec., No.
1:21-cv-1144, 2021 WL 4494623, at *2 (M.D. Pa. Sept. 30, 2021) (finding that
detention under Section 1226(c) for “a little less than fourteen months” was not
per se unreasonable); see also Gabriel v. Barr, No. 1:20-cv-1054, 2021 WL
268996, at *3 (M.D. Pa. Jan. 27, 2021) (collecting cases).
The court, therefore, will deny James’ Section 2241 petition. Denial will be
without prejudice to James’ right to file a new habeas petition in the future shoulc
his detention become unreasonably prolonged and he is able to proffer evidence
showing “good reason to believe that there is no significant likelihood of removal
in the reasonably foreseeable future” that the United States cannot rebut. See
Guzman Chavez, 594 U.S. at 529.
IV. CONCLUSION
Based on the foregoing, the Court will deny James’ petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 without prejudice. An appropriate
Order follows.
Date: Lola / lies
M ae JULIA K. MUNL
' United States Distri ou