United States District Court, S.D. New York
HONORABLE ALISON J. NATHAN, United States District Judge
AMENDED REPORT AND
PITMAN United States Magistrate Judge
an alien with no legal status in the United States, seeks a
writ of habeas corpus pursuant to 28 U.S.C. § 2241,
directing respondents either to release him from custody or
to conduct a bail hearing. For the reasons set forth below, I
respectfully recommend that the petition be denied.
facts giving rise to this action are not in substantial
a native and citizen of Pakistan. In 1990, he entered the
United States illegally. In 1995, an Immigration Judge
ordered that Ali be deported, and that order was carried out.
Nevertheless, Ali entered the United States a second time and
was re-deported pursuant to the 1995 order on or about June
August 30, 2014, Ali applied for admission to the United
States at the Bridge of the Americas in El Paso, Texas.
United States Customs and Border Patrol personnel immediately
took Ali into custody, and Ali has been detained since that
time. Upon being taken into custody, Ali expressed a fear of
persecution or torture in Pakistan, and an asylum officer
found the fear to be credible. Customs and Border Patrol
personnel subsequently issued Ali a Notice to Appear that
alleged that Ali was inadmis- sible pursuant to Section
212(a)(7)(A)(i)(I) of the Immigration and Nationality Act
("INA"), 8 U.S.C. § 1182(a)(7)(A)(i)(I).
proceedings against Ali were commenced in El Paso in October
2014. On Ali's motion, the proceedings were transferred
to New York, New York because Ali had been able to retain
counsel here. Ali contested removal and sought asylum
pursuant to INA Section 241(b)(3), 8 U.S.C. §
1231(b)(3) and the Convention against Torture. The
Immigration Judge heard testi- mony from Ali on November 13,
2015 and January 12, 2016 and issued a 12-page decision on
March 9, 2016 in which he found Ali's testimony
concerning his fear of persecution in Pakistan to be
incredible and denied Ali's request for asylum or relief
from removal and ordered that Ali be removed from the United
commenced this action on April 20, 2016.
the 30-day time limit applicable to appeals from decisions of
Immigration Judges, 8 C.F.R. § 1003.38(b), Ali filed an
appeal from the Immigration Judge's March 9 decision on
May 2, 2016. The Board of Immigration Appeals
("BIA") rejected the appeal because (1) it was not
accompanied by either the filing fee or an application that
the filing fee be waived and (2) the appeal was not in the
correct form. Ali filed a second appeal on May 23, 2016.
Notwithstanding the untimeliness of Ali's appeal, the BIA
assumed jurisdiction over the untimely appeal by
certification and issued a decision on September 15,
2016 rejecting Ali's appeal on the merits and affirming
the decision of the Immigration Judge.
pending petition for a writ of habeas corpus, Ali claims that
his protracted detention violates both the INA and the Due
Process Clause of the Fifth Amendment. Specifically, Ali
Section 241 of the Immigration and Nationality Act permits
the detention of alien[s] with a final order of removal for a
period of 90 days[.] Beyond the statutory period, the Supreme
Court has held that six months is a presumptively reasonable
period of detention for the government to effect removal.
Zadvydas v. Savis, 533 U.S. 678, 701 (2001). Once six months
have passed, the alien must be released if there is no
reasonable likelihood of removal in the reasonably
foreseeable future. Zadvydas, 533 U.S. at 699-700. In this
case, ICE detained petitioner for more than six months since
the issuance of his detention order for removal.
(Petition for Writ of Habeas Corpus, dated Apr. 20, 2016
(Docket Item ("D.I.") 2) ...