Dominick Akinwale v. John Ashcroft ( 2002 )

Dominick AKINWALE, Petitioner-Appellant,
v.
John ASHCROFT, Attorney General of the United States, Doris Meissner, Commissioner INS, Fred
Alexander, District Director, Juan Campos, Asst. District Director, Respondents-Appellees.
No. 00-12655.
United States Court of Appeals,
Eleventh Circuit.
April 4, 2002.
Appeal from the United States District Court for the Northern District of Georgia. (No. 00-00749-CV-JEC-
1), Julie E. Carnes, Judge.
Before BLACK and HULL, Circuit Judges, and LAZZARA*, District Judge.
PER CURIAM:
Petitioner Dominick Akinwale appeals the dismissal of his petition under 28 U.S.C. § 2241 for a writ
of habeas corpus related to his detention by Respondents. After review and oral argument, we affirm the
dismissal of Akinwale's § 2241 petition.
I. BACKGROUND
Akinwale is a native and citizen of Nigeria who entered the United States in 1984 on a nonimmigrant
visa and was granted permanent resident status in 1987. In 1993, he was convicted of a state controlled
substance offense classified as an aggravated felony, which made him deportable under the Immigration and
Nationality Act. See 8 U.S.C. §§ 1251(a)(2)(A)(iii), (a)(2)(B)(i) (1994); Akinwale v. Reno, 216 F.3d 1273,
1274-75 (11th Cir.2000). Since October 3, 1997, he has been subject to a final order of deportation. Id. He
was taken into custody by Respondents on November 17, 1999, following release from incarceration under
his state sentence for heroin trafficking.
Approximately four months later, on March 21, 2000, Akinwale filed the § 2241 petition in this case,
alleging that he was being indefinitely detained by Respondents in violation of federal law.1 On April 7,
2000, a magistrate judge issued a report, which recommended that Akinwale's petition be denied because it
*
Honorable Richard A. Lazzara, U.S. District Judge for the Middle District of Florida, sitting by
designation.
1
The Supreme Court has concluded that "§ 2241 habeas corpus proceedings remain available as a
forum for statutory and constitutional challenges to post-removal-period detention." Zadvydas v. Davis,
533 U.S. 678, 688, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001).
"does not present a situation involving prolonged or indefinite detention pending removal" and because
Akinwale "presents no factual allegations indicating that he is being indefinitely detained pending removal."
On May 8, 2000, the district court adopted the report and dismissed Akinwale's § 2241 petition.
II. DISCUSSION
We conclude that the district court properly dismissed Akinwale's § 2241 petition on these grounds.
First, the magistrate judge's report, as adopted by the district court, correctly found that Akinwale had not
been held for a prolonged period of time as of the date he filed this petition. The magistrate judge observed
that on the date Akinwale filed the § 2241 petition in this case, he had been in Respondents' custody for only
approximately four months. Federal law authorizes aliens removable for violations of criminal law, such as
Akinwale, to be detained beyond the ordinary 90-day removal period. 8 U.S.C. § 1231(a)(6); see Boz v.
United States, 248 F.3d 1299, 1300 (11th Cir.2001). The Supreme Court subsequently confirmed that six
months is a presumptively reasonable period to detain a removable alien awaiting deportation under such
circumstances. Zadvydas v. Davis, 533 U.S. 678, 701, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001).2 The
Supreme Court stated that it recognized the six-month period "for the sake of uniform administration in the
federal courts." Id. Although not expressly stated, the Supreme Court appears to view the six-month period
to include the 90-day removal period plus 90 days thereafter. This six-month period thus must have expired
at the time Akinwale's § 2241 petition was filed in order to state a claim under Zadvydas.3
2
The transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA) apply to Akinwale's efforts to challenge his removal order. It is only Akinwale's post-removal
indefinite detention claims that are governed, as in Zadvydas, by provisions of the post-IIRIRA version of
the Immigration and Nationality Act. The Supreme Court in Zadvydas made it clear that the only issue
being addressed "is whether aliens that the Government finds itself unable to remove are to be condemned
to an indefinite term of imprisonment within the United States." 533 U.S. at 695, 121 S. Ct. 2491.
3
The Supreme Court's stated rationale for establishing a presumptively reasonable "6-month period"
for detention pending removal supports our conclusion that this period commences at the beginning of the
removal period. See Zadvydas, 533 U.S. at 701, 121 S. Ct. 2491 (recognizing that "Congress previously
doubted the constitutionality of detention for more than six months"). And courts of appeal applying
Zadvydas ' new six-month rule have interpreted it consistent with this interpretation. See, for example,
Ma v. Ashcroft, 257 F.3d 1095, 1102 n. 5 (9th Cir.2001) (interpreting Zadvydas on remand as permitting a
detention period "of six months after a final order of removal—that is, three months after the statutory
removal period has ended") (emphasis in original); see also United States v. Oliveros, 275 F.3d 1299,
1308 n. 6 (11th Cir.2001) (noting that Zadvydas set "presumptive limit" of "six months" for detention of
an alien "ordered removed from this country"); Patel v. Zemski, 275 F.3d 299, 309 (3d Cir.2001)
(describing Zadvydas as limiting "post-removal-order detention to a period ... generally no more than six
months").
2
Second, the magistrate judge was also correct in dismissing Akinwale's § 2241 petition because it had
failed to "present any facts indicating that the INS is incapable of executing his removal to Nigeria and that
his detention will, therefore, be of an indefinite nature." In Zadvydas, the Supreme Court confirmed the
correctness of this ruling when it stated that "[a]fter 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." 533 U.S. at 701, 121 S. Ct. 2491.
Therefore, in order to state a claim under Zadvydas the alien not only must show post-removal order detention
in excess of six months but also must provide evidence of a good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future. No such showing was made in Akinwale's § 2241
petition.
For these reasons, we affirm the district court's dismissal of Akinwale's § 2241 petition. Because
circumstances may ultimately change in Akinwale's situation, we affirm the dismissal without prejudicing
Akinwale's ability to file a new § 2241 petition in the future that may seek to state a claim upon which habeas
relief can be granted.4
AFFIRMED.
4
In addition to the above deficiencies in his § 2241 petition, Akinwale was taken into custody on
November 17, 1999, and interrupted the running of time under Zadvydas by moving on December 3,
1999, for a stay of deportation in his prior appeal to this Court. The stay was granted on January 10,
2000. See Akinwale v. Reno, 216 F.3d 1273 (11th Cir.2000). Akinwale subsequently filed the § 2241
petition in this case on March 21, 2000. Thus, Akinwale, unlike the aliens in Zadvydas, chose to
simultaneously challenge issues related to his removal order and his post-removal period detention. See 8
U.S.C. § 1231(a)(1)(C) (1999) (stating "removal period shall be extended ... if the alien ... acts to prevent
the alien's removal subject to an order of removal"). Therefore, Akinwale did not have even an
unencumbered month of detention prior to filing his § 2241 petition, let alone the requisite six months.
3