The opinion of the court was delivered by: McKENNA, D.J.,
Petitioner, a citizen of Bangladesh presently and since August 14, 2008 in the custody of United States Immigration and Customs Enforcement ("ICE") seeks, pursuant to 28 U.S.C. § 2241(c)(3), release from such custody pending execution of a removal order.
The current removal order appears to be that of February 24, 2003. (See Gov't Letter Mem., June 26, 2009, at 1.) Petitioner was taken into custody on August 14, 2008. ICE has contacted the local Consulate of Bangladesh numerous times regarding the issuance of travel documents for petitioner (id. at 2-3) and our government brought the matter to the attention of the Embassy of Bangladesh on January 13, 2009. (Id. at 2.) On February 18, 2009 the local Consulate of Bangladesh conducted an interview of petitioner. (Id.)
"When an alien has been found to be unlawfully present in the United States and a final order of removal has been entered, the Government ordinarily secures the alien's removal during a subsequent 90-day statutory "removal period," during which time the alien normally is held in custody." Zadvydas v. Davis, 533 U.S. 678, 682 (2001). However, "[a] special statute authorizes further detention if the Government fails to remove the alien during those 90 days." Id. Specifically, "[a]n alien ordered removed [in many cases including the present one] may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in [8 U.S.C. § 1231(a)(3)]." 8 U.S.C. § 1231(a)(6).
In the Supreme Court's "view, the statute, read in light of the Constitution's demands, 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. "[O]nce removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." Id. at 699 (citation omitted).
The Supreme Court rejected the argument that "a federal habeas court would have to accept the Government's view about whether the implicit statutory limitation is satisfied in a particular case," id. at 699, concluding, rather, that "[w]hether a set of particular circumstances amounts to detention within, or beyond, a period reasonably necessary to secure removal is determinative of whether the detention is, or is not, pursuant to statutory authority," is a question for a federal court to answer. Id.
In answering that basic question, the habeas court must ask whether the detention in question exceeds a period reasonably necessary to secure removal. It should measure reasonableness primarily in terms of the statute's basic purpose, namely, assuring the alien's presence at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized by statute. In that case, of course, the alien's release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and the alien may no doubt be returned to custody upon a violation of those conditions. And if removal is reasonably foreseeable, the habeas court should consider the risk of the alien's committing further crimes as a factor potentially justifying confinement within that reasonable removal period.
Id. at 699-700 (citations omitted).
In Zadvydas, the Supreme Court created a "presumptively reasonable period of detention" of six months. Id. at 701.
After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an 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. at 699-700 (citations ...