KWARYE v. US IMMIGRATION AND CUSTOMS ENFORCEMENT

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

GEORGE K. KWARYE, )

)

Petitioner, )

)

v. ) 2:24-cv-00404-JAW

)

UNITED STATES )

IMMIGRATION AND CUSTOMS )

ENFORCEMENT, et al., )

)

Respondents )

RECOMMENDED DECISION ON 28 U.S.C. § 2241 PETITION

Petitioner, who was in Immigration and Customs Enforcement (ICE) custody, seeks

habeas relief in accordance with 28 U.S.C. § 2241. (Petition, ECF No. 1.) The Government

argues the petition should be dismissed for lack of jurisdiction. (Response, ECF No. 9.)

After a review of the parties’ arguments and the record, I recommend the Court

grant the Government’s request and dismiss the petition.

DISCUSSION

Petitioner entered the United States in June 2001. In November 2011, an

immigration judge (IJ) ordered him to be removed from the country. The Board of

Immigration Appeals (BIA) upheld the decision in April 2014. Petitioner later entered ICE

custody in January 2024. Petitioner attached exhibits to his petition showing that in April

2024 and August 2024, ICE conducted custody reviews to determine whether to keep

Petitioner in custody or release him subject to supervision. Petitioner was evidently kept

in ICE custody after both reviews, and he was evidently confined at the Cumberland

County Jail when he filed the § 2241 petition with this Court in November 2024. The

Government represents to the Court that Petitioner was removed from the United States to

Ghana on December 12, 2024. Since then, the mail the Court has sent to Petitioner’s prior

address has been returned as undeliverable.

Petitioner relies on a line of cases from the Supreme Court, namely Johnson v.

Guzman Chavez, 594 U.S. 523 (2021) and Zadvydas v. Davis, 533 U.S. 678 (2001), in

support of his request for relief. Petitioner evidently intended to challenge the length of

time he had spent in ICE custody without being removed from the United States. The

Supreme Court has explained:

Once an alien is ordered removed, [the Department of Homeland Security]

must physically remove him from the United States within a 90-day “removal

period.” The removal period begins on the latest of three dates: (1) the date

the order of removal becomes “administratively final,” (2) the date of the

final order of any court that entered a stay of removal, or (3) the date on

which the alien is released from non-immigration detention or confinement.

During the removal period, detention is mandatory.

[T]he removal period may be extended in at least three circumstances, such

that an alien remains detained after 90 days have passed. First, the removal

period may be extended if the alien fails to make a timely application for

travel documents or acts to prevent his removal. Second, DHS may stay the

immediate removal of certain aliens if it decides that such removal is not

practicable or proper, or if the alien is needed to testify in a pending

prosecution. And finally, the statute provides that an alien may be detained

beyond the removal period or released under supervision if he is (1)

inadmissible, (2) removable as a result of violations of status requirements,

entry conditions, or the criminal law, or for national security or foreign policy

reasons, or (3) a risk to the community or unlikely to comply with the

removal order. Continued detention under this provision creates the “post-

removal-period.”

Although the statute does not specify a time limit on how long DHS may

detain an alien in the post-removal period, this Court has “read an implicit

limitation” into the statute “in light of the Constitution's demands,” and has

held that an alien may be detained only for “a period reasonably necessary to

bring about that alien's removal from the United States.” Zadvydas v. Davis,

533 U.S. 678, 689 (2001). And according to the Court, a period reasonably

necessary to bring about the alien's removal from the United States is

presumptively six months. Id., at 701. After that point, if the alien “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 alien. Ibid.

If no exception applies, an alien who is not removed within the 90-day

removal period will be released subject to supervision.

Guzman Chavez, 594 U.S. at 528–29 (statutory and regulatory citations omitted).

Here, the jurisdictional “in custody” requirement of the habeas statute is satisfied

because there is no dispute that Petitioner was in federal custody at the time he filed the §

2241 petition. See Spencer v. Kemna, 523 U.S. 1, 7 (1998) (“[The petitioner] was

incarcerated by reason of the parole revocation at the time the petition was filed, which is

all the ‘in custody’ provision of 28 U.S.C. § 2254 requires”); Simmonds v. I.N.S., 326 F.3d

351, 356 (2d Cir. 2003) (holding that, like a detainer, a removal order satisfies the custody

requirement for purposes of the habeas statute even if an alien has not yet entered federal

detention).

Although the “in custody” requirement is only an issue at the time of filing, a habeas

petition can fail due to mootness because the Article III case or controversy requirement

“subsists through all stages of federal judicial proceedings . . . .” Spencer, 523 U.S. at 7.

A pending petition, however, does not necessarily become moot when a prisoner is

unconditionally released from physical confinement. The “collateral consequences” of the

challenged legal proceedings ordinarily suffice to prevent a habeas case from becoming

moot. Id.; see also, Carafas v. LaVallee, 391 U.S. 234, 237 (1968) (relying on the

prolonged consequences of a criminal conviction even after release to avoid mootness).

In the context of a habeas proceeding challenging removal proceedings, the First

Circuit has held that “the bar on readmission of a removed alien is a legally cognizable

collateral consequence that preserves a live controversy even after deportation of the

petitioner.” Leitao v. Reno, 311 F.3d 453, 456 (1st Cir. 2002). In this case, however,

Petitioner does not challenge the removal order or the basis for the removal order, such as

an underlying conviction which necessitated removal. Rather, Petitioner raises a Zadvydas

claim, which only challenges the duration of pre-removal custody, and the only relief

authorized is supervised release. When petitioners have been removed from the United

States while their Zadvydas claims were pending, other courts have dismissed the habeas

petitions on mootness grounds. See, e.g., Gicharu v. Moniz, No. CV 23-11672-MJJ, 2023

WL 5833115, at *1 (D. Mass. Sept. 8, 2023); Lopes v. Ashcroft, No. C.A.04-014W, 2004

WL 1053087, at *2 (D.R.I. Apr. 5, 2004). The courts’ reasoning is sound. Unlike a

challenge to the basis of a removal order, there are no apparent collateral consequences

from an allegedly too-lengthy period of temporary detention. The petition, therefore, is

moot, and dismissal is warranted.1

1 Even if there was a continued collateral consequence that could sustain subject matter jurisdiction over

the petition, dismissal would still be appropriate. Petitioner cannot show that he is entitled to habeas relief

because the removal makes it impossible to conclude that the temporary detention was unconstitutionally

longer than the period reasonably necessary to achieve the removal. Put another way, the removal rebuts

any possible inference that there was no foreseeable likelihood of removal.

CONCLUSION

Based on the foregoing analysis, I recommend the Court dismiss the matter.

NOTICE

A party may file objections to those specified portions of a magistrate

judge’s report or proposed findings or recommended decisions entered

pursuant to 28 U.S.C. 636(b)(1)(B) for which de novo review by the district

court is sought, together with a supporting memorandum, within fourteen

(14) days of being served with a copy thereof.

Failure to file a timely objection shall constitute a waiver of the right

to de novo review by the district court and to appeal the district court’s order.

/s/ John C. Nivison

U.S. Magistrate Judge

Dated this 20th day of February, 2025.