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IMMIGRATION: Plaintiff's appeal of order of removal to Sierra Leone denied

Case No. 07-CV-0941 (PJS/JSM)
Simbara Hydara, pro se.
Lonnie F. Bryan, Assistant United States Attorney, UNITED STATES
ATTORNEYS 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 Hydaras 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 Hydaras 2241 petition to the extent that
Hydara seeks judicial review of the Immigration Judges (IJs) removal order; (3) transferring
Hydaras 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 Hydaras motion for stay of
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 Hydaras 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
from the United States. On February 9, 2005, the IJ denied Hydaras 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. Hydaras administrative appeal of the IJs 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 IJs 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 Hydaras 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 Hydaras 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
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 aliens post-removal-period detention to a period reasonably
necessary to bring about that aliens 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 aliens departure or conspires or acts to prevent the aliens 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
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 aliens conflicting statements about his birthplace and age of entry into the United States
frustrated the governments 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 removals 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
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
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.
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 Hydaras 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 Hydaras 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, ICEs Forensic Document Laboratory determined that Hydaras 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 Hydaras persistent dishonesty, his
2Hydaras native language is identified, at various points in the record, as both Soninke
and Marka. Marka is apparently an alternate name for Soninke. SIL Intl, Ethnologue:
Languages of the World (Raymond G. Gordon, Jr. ed., 15th ed. 2005), available at
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 ICEs 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 ICEs finding that his identity documents are counterfeit, render Hydaras 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
Hydaras claim of citizenship. Rather, the Court holds that Hydaras course of conduct thus far
is inconsistent with his claim that he has cooperated fully and truthfully with the governments
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 Hydaras 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 Hydaras citizenship.
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 Hydaras 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. Atty 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.
II. Transfer of Hydaras CAT and Due-Process Claims
Judge Mayeron found, and the Court agrees, that the Court lacks jurisdiction to review
Hydaras 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 Hydaras 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. Dept of Air
Force, 725 F.2d 1160, 1163 (8th Cir. 1984))). As Hydaras petition was untimely when it was
filed in this Court, the Court cannot transfer it under 1631.
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. Petitioners 28 U.S.C. 2241 petition for a writ of habeas corpus [Docket No. 1]
2. Petitioners motion for stay of removal [Docket No. 5] is DENIED.
Dated: August 21 , 2007 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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