Farish v. DHS ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ABDUL MUIZZ FARISH Case No.: 20cv1716-LAB (MSB) 12 Petitioner, ORDER DENYING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS; AND 14 DHS, et al. 15 Respondents. ORDER DISMISSING PETITION WITHOUT PREJUDICE 16 17 18 19 Petitioner Abdul Muizz Farish, a Fijian national in federal custody and subject 20 to a final order of removal, filed his petition under 28 U.S.C. § 2241. Farish alleges 21 that his order of removal became final on January 13, 2020, but that the 22 government has not yet removed him to Fiji because of COVID-19 related 23 restrictions on overseas flights. Farish argues that his continued detention is illegal 24 under Zadvydas v. Davis, 533 U.S. 678 (2001), because six months has elapsed 25 since his order of removal became final and yet he is being kept in custody with no 26 immediate prospect of either removal or conditional release. 27 Although Farish paid the mandatory filing fee, he also filed a motion to 28 proceed in forma pauperis. That motion is DENIED AS MOOT. 1 Exhibits attached to the petition show that Farish, a lawful permanent 2 resident, was convicted of vehicular theft, evading a peace officer, and robbery. 3 After he served his sentence, he was ordered removed and declined to appeal the 4 order of removal. Under 8 U.S.C. § 1231, an alien who has been ordered removed 5 can be detained pending removal. In Zadvydas, the Supreme Court read a 6 Constitutional limitation into § 1231(a)(6), such that an alien’s post-removal 7 detention period was limited “to a period reasonably necessary to bring about that 8 alien’s removal from the United States.” 533 U.S. at 689. Indefinite detention 9 “would raise a serious constitutional problem” and is not authorized. Id. at 689–90, 10 699. “[O]nce removal is no longer reasonably foreseeable, continued detention is 11 no longer authorized by statute.” Id. 12 The Court set a 6-month period during which detention was presumptively 13 reasonable. After the expiration of this 6-month period, if the alien can provide 14 good reason to believe that there is no significant likelihood of removal in the 15 reasonably foreseeable future, the onus is on the government to rebut that 16 showing. Id. at 701. “This 6-month presumption, of course, does not mean that 17 every alien not removed must be released after six months.” Id. Rather, an alien 18 may be held in confinement “until it has been determined that there is no significant 19 likelihood of removal in the reasonably foreseeable future.” Id. This does not 20 require a showing that removal is impossible or will never occur. Id. at 702. On the 21 other hand, merely showing delays arranging for removal does not meet the 22 standard. See Nasr v. Larocca, 2016 WL 3710200, at *4 (C.D. Cal., June 1, 2016). 23 Farish has been detained several months longer than the 6-month period 24 that is presumptively reasonable. However, documents attached to the petition, 25 which Farish accepts as true, show that the delay is temporary. COVID-19 related 26 travel restrictions are preventing the government from arranging to put Farish on 27 a flight to Fiji, and that the government stands ready to remove him as soon as 28 travel is permitted. He has not pointed to any facts suggesting that these 1 |/restrictions are anything other then temporary. Although it is unknown when 2 || COVID-19 restrictions will end, this uncertainty does not transform a temporary 3 ||detention into an impermissible indefinite one. See Diouf v. Mukasey, 542 F.3d 4 1/1222, 1233 (9th Cir. 2008) (holding that the fact that detention did not have a 5 ||“certain end date” did not render it impermissibly indefinite). See also Prieto- 6 || Romero v. Clark, 534 F.3d 1053, 1064—65 (9th Cir. 2008) (rejecting argument that 7 ||removal was no longer reasonably foreseeable whenever there was “some degree 8 || of uncertainty as to when his detention will conclude”). 9 Under Zadvydas, once the 6-month period has passed, if the alien shows 10 ||good reason to believe there is no significant likelihood he will be removed in the 11 ||reasonably foreseeable future, the government must either rebut that showing or 12 ||release him. 533 U.S. at 701. Here, Farish has not made the required showing, 13 ||so his petition will be dismissed. If he believes he can allege additional facts to 14 ||make the required showing, however, he may file an amended petition. 15 The petition is DISMISSED WITHOUT PREJUDICE. No later than October 16 |/30, 2020, Farish may file an amended petition correcting the defects this order has 17 pointed out. If he does not do this within the time permitted, this action will be 18 || dismissed. 19 20 IT IS SO ORDERED. 21 ||Dated: October 8, 2020 22 / ot 4 ‘Z, Ye 23 Honorable Larry Alan Burns 2A Chief United States District Judge 25 26 27 28