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IMMIGRATION: Plaintiff's appeal of order of removal to Sierra Leone deniedUNITED STATES DISTRICT COURTDISTRICT OF MINNESOTA SIMBARA HYDARA, Petitioner, v. ALBERTO GONZALES, et al., Respondents. Case No. 07-CV-0941 (PJS/JSM) MEMORANDUM OPINION AND ORDER Simbara Hydara, pro se. Lonnie F. Bryan, Assistant United States Attorney, UNITED STATES ATTORNEY’S OFFICE, for respondents. This matter is before the Court on respondents’ objection to the July 16, 2007 Report and Recommendation (“R&R”) of Magistrate Judge Janie S. Mayeron. Judge Mayeron recommends the following: (1) granting Simbara Hydara’s petition for a writ of habeas corpus under 28 U.S.C. § 2241 to the extent that Hydara seeks to be released from the custody of Immigration and Customs Enforcement (“ICE”); (2) denying Hydara’s § 2241 petition to the extent that Hydara seeks judicial review of the Immigration Judge’s (“IJ’s”) removal order; (3) transferring Hydara’s claim for judicial review of the removal order to the United States Court of Appeals for the Eighth Circuit pursuant to 28 U.S.C. § 1631; and (4) denying Hydara’s motion for stay of removal. Respondents object to recommendations (1) and (3). The Court has conducted a de novo review. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). For the reasons set forth below, the Court will sustain respondents’ objections and deny Hydara’s § 2241 petition in its entirety. The R&R thoroughly discusses the factual and procedural background of this case; only a very brief summary will be provided here. Hydara is an alien who has been ordered removed -2- from the United States. On February 9, 2005, the IJ denied Hydara’s applications for asylum, withholding of removal, and relief under Article III of the Convention Against Torture (“CAT”) and ordered Hydara removed to Sierra Leone. A month later, on March 14, 2005, ICE took Hydara into custody. Hydara’s administrative appeal of the IJ’s order was denied as untimely on February 9, 2006, and the removal order became final as of that date. Hydara has not yet been removed to Sierra Leone, however, and remains in the custody of ICE. Essentially, Hydara is seeking two forms of relief: First, he asks to be released from custody under Zadvydas v. Davis, 533 U.S. 678 (2001), and second, he asks the Court to review the substance of the IJ’s removal order. With respect to the latter request, Hydara alleges that the IJ erred in denying his application for relief under the CAT, and he alleges that removing him would violate his right to due process under the Fifth Amendment to the United States Constitution. Judge Mayeron found that this Court lacks jurisdiction to review Hydara’s CAT and due-process claims, and Hydara has not objected to that finding. Judge Mayeron recommends transferring those claims to the United States Court of Appeals for the Eighth Circuit. The Court considers Hydara’s Zadvydas claim and the issue of transfer in turn. I. Zadvydas Claim As described, Hydara is an alien who is subject to a final removal order. The Immigration and Nationality Act (“INA”) defines a ninety-day “removal period” during which the Attorney General is required to remove the alien from the United States. 8 U.S.C. § 1231(a)(1)(A). The INA also requires that the Attorney General detain the alien during the removal period. 8 U.S.C. § 1231(a)(2). If the government fails to remove the alien during the ninety-day removal period, the INA permits the government to keep the alien in custody beyond -3- that removal period in certain circumstances. See Bah v. Cangemi, 489 F. Supp. 2d 905, 915 (D. Minn. 2007). One of those circumstances — described in § 1231(a)(6) — is if the alien “has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal[.]” In Zadvydas, the Supreme Court held that § 1231(a)(6) does not authorize the government to detain an alien indefinitely. Zadvydas, 533 U.S. at 689. Instead, the Supreme Court held that the statute “limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States.” Id. To aid lower courts in determining what qualifies as a reasonable period of detention, the Court established a period of six months — the ninety-day removal period, plus an additional ninety days — during which detention is presumptively reasonable. Id. at 701. After the six-month period, an alien seeking to be released from custody bears the burden of “provid[ing] good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future . . . .” Id. The government then bears the burden of “respond[ing] with evidence sufficient to rebut that showing.” Id. A different section of the INA, not at issue in Zadvydas, extends the ninety-day removal period “if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien’s departure or conspires or acts to prevent the alien’s removal subject to an order of removal.” 8 U.S.C. § 1231(a)(1)(C). Subsequent to Zadvydas, numerous courts have held that, when an alien refuses to cooperate in securing his removal, he can be detained under § 1231(a)(1)(C) for longer than the six-month period that Zadvydas established as presumptively reasonable under § 1231(a)(6). These courts have assumed that Zadvydas applies -4- to aliens being detained under § 1231(a)(1)(C) and reasoned that, when an alien obstructs his removal, he cannot meet his burden of showing that there is no significant likelihood of removal in the reasonably foreseeable future. See Lema v. INS, 341 F.3d 853, 856 (9th Cir. 2003); Pelich v. INS, 329 F.3d 1057, 1059-61 (9th Cir. 2003); Davis v. Gonzales, 482 F. Supp. 2d 796, 800-01 (W.D. Tex. 2006); Powell v. Ashcroft, 194 F. Supp. 2d 209, 212 (E.D.N.Y. 2002). Cooperation, in this context, means more than simply complying with procedural requirements, such as filling out forms or appearing at interviews. To be fully cooperative, the alien must provide complete and truthful information. See Lema, 341 F.3d at 855-56 (habeas petition denied where alien misrepresented himself as Eritrean to Ethiopian consular officials and therefore did not “cooperate fully and honestly” with the government); Pelich, 329 F.3d at 1059 (petition denied where alien provided inconsistent information about his name, his parents’ names, his birthplace, and his nationality); Powell, 194 F. Supp. 2d at 210-11 (petition denied where alien’s conflicting statements about his birthplace and age of entry into the United States frustrated the government’s efforts to remove him). In considering whether aliens have satisfied their obligations under § 1231(a)(1)(C), courts look to whether they have undertaken overt actions to thwart removal, whether they can or have produced affidavits from friends and family to support their claims of nationality, whether they have requested travel documents from the country of intended removal, whether they have attempted to contact the country of intended removal’s consulate, and/or whether they can or have provided the INS with requested documents. Davis, 482 F. Supp. 2d at 801. In this case, the parties dispute whether Hydara has given complete and truthful information about his citizenship. Hydara maintains that he is a citizen of Sierra Leone; the government contends that he is lying. If Hydara is being truthful, then he is in a difficult -5- position: He is a citizen of Sierra Leone, but Sierra Leone will not accept him, leaving him to languish in custody indefinitely. If Hydara is not being truthful, then he has effectively blocked his removal through his own dishonest conduct. To order him released from custody would be to reward his deceit and give him an advantage over aliens who have been removed after acting in good faith. The question, then, is whether Hydara has complied with § 1231(a)(1)(C) and thereby met his burden under Zadvydas of “provid[ing] good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future . . . .” Zadvydas, 533 U.S. at 701. On this record, the Court finds that Hydara has not met his burden. First, Hydara has engaged in a persistent pattern of manipulative and dishonest behavior from the very beginning of his administrative proceedings. For example, he gave inconsistent information about being captured by rebels in Sierra Leone and provided an internally inconsistent account of his travel to and entry into the United States. See Certified Administrative Record at 36-39 (“CAR”) [Docket No. 30]. At the hearing before the IJ, Hydara added details to his background — such as the death of a sister — that he had inexplicably failed to provide previously. Id. at 37. (Later, in May 2007, he told an ICE officer that he did not have a sister. Id. at 57.) He failed to turn over his identity documents to the Department of Homeland Security until the day of his hearing before the IJ, despite having been instructed to do so at least a year before the hearing. Id. at 35. He also refused to provide fingerprints. Id. With ample justification, the IJ found Hydara to be not credible and further found that his asylum application was frivolous. Id. at 36, 41. It is very difficult to believe that a petitioner who acted so dishonestly before he was ordered removed has been entirely truthful since he was ordered removed. 1The birth certificate has an issue date of May 5, 1996, CAR at 27-29, but no date is legible on what is apparently a copy of his national identity card, CAR at 30-32. -6- Second, ICE has found, and Hydara has given the Court no reason to doubt, that the identity documents that Hydara provided to the Department of Homeland Security — a birth certificate and a national identity card — are forgeries. Shortly after Hydara’s removal order became final, ICE requested travel documents from the Embassy of Sierra Leone (“the Embassy”). Klinger Decl. ¶ 4 [Docket No. 19]. After interviewing Hydara twice, a consular official from the Embassy did not believe that Hydara was a citizen of Sierra Leone. Id. ICE then asked the Embassy to verify Hydara’s identity documents. Id. The Embassy evidently found them wanting; in October 2006, the Embassy officially notified ICE that it was declining to issue travel documents for Hydara because he is not a citizen of Sierra Leone. Id. ¶ 9. In December 2006, ICE’s Forensic Document Laboratory determined that Hydara’s identity documents were both forgeries. Id. ¶ 10 & First Attach. Hydara claims that he obtained both his birth certificate and his national identity card directly from the government of Sierra Leone. It is very difficult to believe that Sierra Leone would supply Hydara with two counterfeit documents, presumably on two separate occasions.1 It is hard to imagine why a government would forge its own documents. Moreover, the Court notes that Hydara failed to provide these documents to the government until the day of his hearing — despite being told to turn over the documents a year earlier — and thereby deprived the government of the ability to determine the authenticity of these documents in time for the hearing. This strongly suggests that Hydara had something to hide; Hydara has certainly not provided an innocent explanation for his conduct. In light of Hydara’s persistent dishonesty, his 2Hydara’s native language is identified, at various points in the record, as both “Soninke” and “Marka.” Marka is apparently an alternate name for Soninke. SIL Int’l, Ethnologue: Languages of the World (Raymond G. Gordon, Jr. ed., 15th ed. 2005), available at http://www.ethnologue.com/. -7- failure to turn over his identity documents until the day of his hearing, and his less-thanbelievable explanation for his possession of forged identity documents, it is much more likely that Hydara knowingly secured counterfeit documents than it is that the government of Sierra Leone on two occasions forged its own documents. Third, as a substantive matter, there is reason to believe ICE’s claim that Hydara is not, in fact, a citizen of Sierra Leone — which would explain why he needed to secure forged identity documents. The Embassy found that he was not a citizen because the language he speaks is rarely spoken in Sierra Leone2 and because he did not respond to any of the consular officials’ questions about Sierra Leone. Klinger Decl. ¶ 11; CAR at 47. These facts, combined with ICE’s finding that his identity documents are counterfeit, render Hydara’s claim of citizenship highly doubtful. To be clear: The Court is not making a finding, one way or the other, as to the truth of Hydara’s claim of citizenship. Rather, the Court holds that Hydara’s course of conduct thus far is inconsistent with his claim that he has cooperated fully and truthfully with the government’s efforts to remove him. Hydara lied throughout the administrative proceedings, he presented a fake birth certificate and a fake national identity card, and he presented those fake documents in a manner that gives rise to a strong inference that he knew that they were fake. He has not yet given a full and credible explanation for why his identity documents are forged or for why he delayed submitting them until the last minute. He has not fully and credibly explained why 3If Hydara persists in claiming to be a citizen of Sierra Leone, and the government persists in disbelieving him, a court may ultimately have to hold an evidentiary hearing, invite Hydara to testify, and make a finding as to the truth of Hydara’s claim. But at this point — when Hydara is not able to establish that he has provided complete and truthful information to the government — the Court need not make a finding about Hydara’s citizenship. -8- Sierra Leone is wrong to conclude that he is not a citizen, when the language he speaks is rarely spoken there and when he was unable or unwilling to respond to consular officials’ questions about the country. He has not attempted to support the veracity of his claims of citizenship with affidavits from friends or family (or explained why he is unable to do so). Cf. Davis, 482 F. Supp. 2d at 801-02 (“[T]here is ample evidence indicating that he has not exhausted readily available resources in making a good faith effort to effectuate his removal.”). At the very least, Hydara has not helped the government sort out the mess that he himself created. The Court will therefore deny Hydara’s § 2241 petition. Because Hydara has not provided complete and truthful information to the government, he has not met his burden under Zadvydas of “provid[ing] good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future . . . .” Zadvydas, 533 U.S. at 701. This is not to say that Hydara can never prevail on a Zadvydas claim. If he can later show that he has been completely truthful and forthcoming with the government — and, despite that fact, there is no significant likelihood of his being removed in the reasonably foreseeable future — Hydara may be entitled to relief under § 2241.3 See Barenboy v. Att’y Gen. of U.S., 160 Fed. Appx. 258, 261 & n.3 (3d Cir. 2005); Pelich, 329 F.3d at 1061 n.3. But Hydara is not there now. -9- II. Transfer of Hydara’s CAT and Due-Process Claims Judge Mayeron found, and the Court agrees, that the Court lacks jurisdiction to review Hydara’s CAT and Fifth Amendment due-process claims. See 8 U.S.C. § 1252(a)(4)-(a)(5). Jurisdiction to review these claims lies solely in the “appropriate court of appeals[.]” Id. Under 28 U.S.C. § 1631, the Court must, if it is in the interests of justice, transfer these claims to the court “in which the action or appeal could have been brought at the time it was filed or noticed[.]” The Court cannot transfer Hydara’s CAT and due-process claims under § 1631, however, because they were untimely when he filed them in this Court, and therefore they could not have been brought in the appropriate court “at the time [they were] filed or noticed.” As noted above, the order of removal became final on February 9, 2006. Under 8 U.S.C. § 1252(b)(1), Hydara had thirty days to file a petition for review. This time limit is jurisdictional. See Stone v. INS, 514 U.S. 386, 405 (1995); Asere v. Gonzales, 439 F.3d 378, 380 (7th Cir. 2006); Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003) (per curiam). Hydara did not file this action until February 7, 2007, nearly eleven months after the deadline for filing a petition. The Eighth Circuit has made clear that, if an action was untimely when it was originally filed, it cannot be transferred under § 1631. Hyun Min Park v. Heston, 245 F.3d 665, 667 (8th Cir. 2001) (“‘transfer [under § 1631] can remedy the mistake of filing in the wrong court, but not the mistake of filing in an untimely manner’” (quoting Billops v. Dep’t of Air Force, 725 F.2d 1160, 1163 (8th Cir. 1984))). As Hydara’s petition was untimely when it was filed in this Court, the Court cannot transfer it under § 1631. -10- ORDER Based on the foregoing, and on all of the files, records, and proceedings herein, the Court SUSTAINS respondents’ objection [Docket No. 28] and ADOPTS the R&R [Docket No. 27] only to the extent described in this order. IT IS HEREBY ORDERED THAT: 1. Petitioner’s 28 U.S.C. § 2241 petition for a writ of habeas corpus [Docket No. 1] is DENIED. 2. Petitioner’s motion for stay of removal [Docket No. 5] is DENIED. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: August 21 , 2007 s/Patrick J. Schiltz Patrick J. Schiltz United States District Judge |
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