alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future." Id.
After Zadvydas, the Attorney General established regulations to govern whether there is a significant likelihood that an alien will be removed in the reasonably foreseeable future. See 8 C.F.R. § 241.13. As the regulations state, detention of an alien may continue while the INS' Headquarters Post-order Detention Unit ("HQPDU") determines whether or not a significant likelihood of removal exists. § 241.13(b)(2). This determination may be triggered by a written request submitted by the alien to the HQPDU "asserting the basis for the alien's belief that there is no significant likelihood that the alien will be removed in the reasonably foreseeable future. . . ." § 241.13(d)(1). The HQPDU then has 10 business days after the receipt of the request to "respond in writing to the alien, with a copy to counsel of record, by regular mail, acknowledging receipt of the request for a review under this section and explaining the procedures that will be used to evaluate the request." § 241.13(e)(1). The HQPDU must then assess the alien's efforts to comply with the removal process as well as a host of other factors, and issue a written decision to the alien with a copy to counsel of record. §§ 241.13(e)(2), (f), (g).
II. Jurisdiction / Exhaustion of Admin istrative Remedies
Petitioner contends that he is being detained in contravention of the Supreme Court's holding in Zadvydas. Respondents counter that his detention remains presumptively valid, and that the instant petition should dismissed.
At the outset, respondents suggest that petitioner has failed to exhaust all of his administrative remedies under § 241.13, and that such failure alone provides grounds for dismissal of his petition. Petitioner disputes whether the doctrine of administrative exhaustion is strictly applied to cases challenging custody determinations, but argues that nevertheless he has exhausted his administrative claims.
This Court makes no findings regarding whether exhaustion of the administrative procedures outlined in § 241.13 is a necessary prerequisite to federal judicial review. Instead, it concludes that even if § 241.13 is jurisdictional, petitioner has exhausted his administrative remedies pursuant to § 241.13. Indeed, on March 31, 2003, petitioner's counsel, Rita Dave, filed a written request explicitly invoking § 241.13, citing the Guyanese Embassy's letter of March 26, 2003, as the reason it was unlikely that petitioner would be removed in the reasonably foreseeable future. See Dave Letter, dated March 31, 2001, Petitioner's Brief, Attachment. Faced with such a request, under § 241.13(e)(1), the HQPDU had 10 business days after it received the request to respond in writing to petitioner and Ms. Dave, acknowledging receipt of the request and explaining the procedures that would be used to evaluate it. As of April 24, 2003, however, the HQPDU had made no such written response. There are no further provisions in the regulations for a petitioner to pursue once the HQPDU has failed to respond to its written request. Accordingly, the Court deems the petitioner's administrative remedies exhausted.
III. The Merits
A. Status of Petitioner's Ongoing Detention
Turning to the merits of petitioner's claim, petitioner asserts that he has been in INS detention awaiting removal since April 13, 2001, the date that the BIA affirmed the IJ's final order of removal. Thus, he argues, the post-order removal period exceeds two years, well over the six-month "presumptively reasonable" period prescribed by Zadvydas. Moreover, petitioner points out that he has never been adjudged to be a flight risk or a danger to the community. Respondents assert that because they have not had "one unencumbered month" of post-order custody in which to remove petitioner, petitioner's present detention remains presumptively valid.*fn2
Section 1231 states that if an alien acts to frustrate the INS' ability to remove him, the removal period is tolled during the period of the alien's actions. 8 U.S.C. § 1231(a)(1)(C); Powell v. Ashcroft, 194 F. Supp.2d 209, 210 (E.D.N.Y. 2002). The limited case law on what constitutes a "frustration of removal" has not interpreted this phrase expansively: courts have only tolled the removal period in cases where the alien has sought and received a stay of removal through judicial action (see Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002)), or where the alien has demonstrated some sort of bad faith failure to cooperate, such as providing the INS with false or inconsistent information regarding his identity or country of origin (see Powell, supra; Ncube v. INS, No. 98 Civ. 0282, 1998 WL 842349 at *16 (S.D.N.Y. Dec.2, 1998)), or refusing to complete travel arrangements or name a country for deportation (Riley v. Greene, 149 F. Supp.2d 1256, 1262 (D.Colo. 2001); Sango-Dema v. District Director, 122 F. Supp.2d 213, 221 (D.Mass. 2000); Cf. Ford v. Quarantillo, 142 F. Supp.2d 585, 588 (D.N.J. 2001) (ordering release of alien detained for 14 months, even though he misrepresented his country of origin)). Indeed, as Seretse-Khama has held, a petitioner's truthful statement (such as expressing that he did not wish to return to his country of origin) which is later adopted by the country of origin as a reason for not wanting to repatriate that alien, is not an example of refusal to cooperate under § 1231(a)(1)(C), and cannot be used as a grounds for extending post-removal detention. Seretse-Khama v. Ashcroft, 215 F. Supp.2d 37, 50-53 (D.D.C. 2002).
In the instant case, petitioner has not acted in bad faith. There is no evidence of his failure to cooperate-all we have is petitioner's request for a stay of removal, which he obtained from this Court on April 26, 2001. However, prior to receiving this stay, petitioner had been in custody post-final removal order since April 13, 2001, thirteen days prior. Furthermore, between the date petitioner's judicial stay was lifted on October 21, 2002 (when petitioner withdrew his Second Circuit appeal) and April 9, 2003, the date he filed the instant habeas petition, five months and nineteen days elapsed. Putting together those five months and nineteen days with the thirteen days in April 2001, there have been more than six unencumbered months that the INS has had to effectuate petitioner's removal. Even if the Court considers November 8, 2002, the date the INS denied petitioner's application for deferred action, as the proper starting date for counting purposes (even though there was nothing to stop the INS from removing petitioner even while it was considering his application), there were five full unencumbered months in which the INS could have effectuated removal before petitioner filed the instant application.*fn3
Respondents attempt to argue that during this period, petitioner was "frustrating his removal" because his counsel had advised the Guyanese Ambassador that he intended to file another court action, and the Guyanese government had a policy of not issuing travel documents to its nationals who file court actions. Respondents cite no case law, however, to support its argument that such truthful communication to an embassy falls within the purview of § 1231(a)(1)(C). Indeed, such a circumstance seems akin to the situation in Seretse-Khara, in which a truthful communication by petitioner which led an embassy to deny travel documents was deemed not to be an effort not to frustrate removal under § 1231(a)(1)(C). Respondent has made no demonstration that petitioner has in any way acted in bad faith-he has simply availed himself of judicial process and communicated to the Guyanese embassy his plans to do so. Accordingly, the Court finds that the INS has had over six unencumbered months in which to attempt to effectuate petitioner's removal.
B. No Significant Likelihood of Removal in the Reasonably Foreseeable Future
Furthermore, petitioner has satisfied his burden of "provid[ing] good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future." Zadvydas at 701, 121 S.Ct. 2491. Indeed, he has submitted a letter from the Guyanese Ambassador, stating that the embassy will not issue travel documents to him both because of his pending judicial proceedings and because of his inability to receive adequate medical treatment for his eye disease in Guyana. Moreover, petitioner has also presented medical reports from his eye doctor, confirming his eye disease and his need for "immediate medical attention by a trained ophthalmologist and/or retinal specialist" as well as "regular and scheduled ophthalmic followup." (Letter from Dr. Martin Fox, Petitioner's Brief, Ex. C.) Such evidence is sufficient to satisfy petitioner's Zadvydas burden: it demonstrates that Guyana is unlikely to take petitioner back so long as it lacks the medical capability to treat his eye disease. Hence, plaintiff has shown that there is a significant likelihood that he will not be removed in the reasonably foreseeable future.
C. Government's Rebuttal Evidence
Once petitioner has made such a showing, "the Government must respond with evidence sufficient to rebut that showing." Zadvydas at 701, 121 S.Ct. 2491. In the instant case, however, the Government's rebuttal evidence that petitioner is likely to be removed shortly is speculative at best. Indeed, the Government relies on four arguments to rebut petitioner's showing: 1) that Guyana regularly issues travel documents to its nationals, 2) that Guyana actually issued a travel document to petitioner in November 2001, 3) that BICE will be filing a démarche with the government of Guyana threatening sanctions if it does not issue travel documents to petitioner, and that Guyana has responded to prior threats of sanctions by issuing travel documents forthwith, and 4) that with the démarche, the Government will include medical reports that conclusively demonstrate that petitioner's eye condition does not require special treatment, thus rendering him able to be treated in Guyana.
Such arguments, however, do not provide any conclusive evidence that petitioner will be removed in the near future. Evidence of what the Guyanese government has done in the past with respect to petitioner and with respect to other nationals sheds little light on how the Guyanese government will respond to the current situation. Indeed, the fact that the Guyanese government regularly issues travel documents and issued travel documents to petitioner in the past merely indicates that its general protocol is to issue travel documents, and that it must have a specific reason why it will not issue travel documents to petitioner at this time. Furthermore, the Government has offered no evidence that the proposed démarche has actually been filed, and the Court finds it difficult to infer from a prior circumstance of threatened sanctions against Guyana, which may or may not have been akin to the situation at hand, that travel document. will necessarily issue as soon as it is filed.
Lastly, the Government provides no reliable evidence to rebut the medical reports provided by petitioner's ophthalmologist, Dr. Fox. In fact, in attempting to rebut Dr. Fox's report, the Government incorrectly advised the Court that an ophthalmologist found petitioner not to have any serious eye problems, when in fact, he was only seen by an optometrist, an individual who does not have a medical degree. Moreover, the Public Health certification, which relied upon the optometrist's report in reaching its conclusion that petitioner does not require any special treatment (but which also mistakenly refers to the report as an "ophthalmologist's report"), similarly was not performed by a medical doctor, but rather by a "Dr. P.H.," presumably an individual with a doctorate in public health. Thus, none of the Government's rebuttal evidence is based upon an evaluation by a medical doctor, much less an ophthalmologist specializing in eye disease. Hence, the Government has provided no competent medical evidence to rebut the conclusion of petitioner's ophthalmologist, who found petitioner in need of immediate ophthalmic care and regular ophthalmic followup.
Thus in sum, the Court finds that the Government has failed to rebut petitioner's showing that there is no significant likelihood that he will be removed in the reasonably foreseeable future. For the foregoing reasons, petitioner's writ of habeas corpus was granted on April 24, 2003.
On April 9, 2003, petitioner Marlon Rajigah filed the above-captioned petition for a writ of habeas corpus under 28 U.S.C. § 2241 to enjoin his continued unlawful detention by Respondents. The petition is hereby granted. A Memorandum of Decision will issue shortly.
Respondents are ordered to release petitioner immediately and to impose appropriate conditions for petitioner's release in an order of supervision.