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Ali v. Dubois

United States District Court, S.D. New York

February 17, 2002

SHUJAT ALI, Petitioner,
v.
CARL DUBOIS, et al., Respondents.

          HONORABLE ALISON J. NATHAN, United States District Judge

          AMENDED REPORT AND RECOMMENDATION[1]

          HENRY PITMAN United States Magistrate Judge

         I. Introduction

         Petitioner, 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.

         II. Facts

         The facts giving rise to this action are not in substantial dispute.

         Ali is 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 26, 2002.

         On 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)[2] of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(7)(A)(i)(I).

         Removal 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)[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 States.

         Petitioner commenced this action on April 20, 2016.[4]

         Notwithstanding 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[5] and issued a decision on September 15, 2016 rejecting Ali's appeal on the merits and affirming the decision of the Immigration Judge.

         In his 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 claims:

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) ...


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