United States District Court, D. Massachusetts
ORDER ON MOTIONS TO DISMISS (DOCS. 10, 18)
Sorokin United States District Judge
April 26, 2016, Petitioner Rashid Conteh, an immigration
detainee at the Suffolk County House of Correction, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241, alleging that his detention by U.S. Immigration
and Customs Enforcement (“ICE”) violates his due
process rights under Zadvydas v. Davis, 533 U.S. 678
(2001). Doc. 1. Respondent Yolanda Smith, the Superintendent
of the Suffolk County House of Correction, has filed two
motions to dismiss the petition, the first on May 18, 2016,
and the second on August 26, 2016. For the reasons that
follow, the Court ALLOWS Respondent's second motion to
dismiss (Doc. 18) and DENIES AS MOOT Respondent's first
motion to dismiss (Doc. 10).
Rashid Conteh is “a native and citizen of Sierra
Leone.” Doc. 1 at 4. He arrived in the United States as
a refugee with his family in 2000, when he was fourteen years
old. Id. Petitioner is the only member of his family
who did not become a U.S. citizen. Id. From 2007 to
2009, Petitioner was convicted of various offenses, including
possession of a controlled substance and criminal
November 16, 2009, an Immigration Judge entered an order of
removal against Petitioner. Id. at 5. On September
15, 2015, ICE “took Petitioner into custody to await
his deportation.” Id. Petitioner requested
release, but ICE denied that request on the grounds that
Petitioner “was a danger to the community and a flight
risk.” Id. (citation omitted). In a letter
dated March 18, 2016, ICE “informed Petitioner that
[it] was working with the government of Sierra Leone to
secure [a] travel document for his removal from the United
States.” Id. at 6.
claims there is no significant likelihood that ICE will
remove him in the reasonably foreseeable future, because
Sierra Leone does not recognize him as a citizen and has
“Temporary Protection Status due to Ebola
outbreak.” Id. If Petitioner is correct that
there is no significant likelihood of removal in the
reasonably foreseeable future, then he is eligible for
conditional release under Zadvydas. 533 U.S. at 701;
see also Doc. 1 at 6-7.
Motions to Dismiss
18, 2016, Respondent filed a motion to dismiss the petition
for failure to state a claim. Doc. 10. Respondent claimed
there was a significant likelihood of Petitioner's
removal in the reasonably foreseeable future, as officials
from the Embassy of Sierra Leone had “confirmed”
Petitioner's nationality and “stated that they will
issue a travel document.” Doc. 12 at 7.
August 1, 2016, Respondent filed a notice of intent to remove
Petitioner within twenty-one days. Doc. 15.
August 26, 2016, Respondent filed a second motion to dismiss.
Doc. 18. In a sworn declaration accompanying the motion, an
ICE official stated that ICE had scheduled Petitioner's
removal for August 16, 2016. Doc. 19-1 at 2. However, the
official said, ICE had to abort the removal because
Petitioner physically resisted ICE removal officers at the
airport and yelled that he would not comply with the removal
order. Id. at 3-4.
October 6, 2016, Respondent filed a sworn supplemental
declaration by the same ICE official. Doc. 26. According to
the official, Petitioner was scheduled for removal on
September 27, 2016. Id. at 3. However, the official
said, after Petitioner was informed of his impending removal
on the morning of that date, Petitioner said that he would
refuse to comply and would “rather stay in jail than go
to Sierra Leone.” Id. at 3-4. According to the
official, later that day, at the airport, Petitioner again
physically resisted the ICE removal officers, and ICE was
again forced to abort the removal. Id. at 5.
October 7, 2016, Petitioner filed a response to the second
motion to dismiss and to the sworn supplemental declaration.
Doc. 28. Petitioner argues that Respondent is unlawfully
attempting to remove him “without first establishing
his nationality.” Id. at 2. Petitioner also
argues that the travel documents Respondent has obtained from
the Embassy of Sierra Leone are “invalid.”
Id. Petitioner finds it “suspicio[us]”
that the travel documents for August 16, 2016, and September
27, 2016, were issued on the same day but only one of the
documents - for the later date - has Petitioner's correct
birth date. Id. at 2-3. Petitioner also finds it
suspicious that although the “travel document . . .
contains a stamped seal of the Embassy of Sierra Leone[, it]
does not appear to have been signed by the official
government.” Id. at 3.
October 14, 2016, Respondent filed a reply to
Petitioner's response. Doc. 31. Respondent argues that
this Court “lacks jurisdiction” over any claim
that Petitioner's removal is unlawful. Id. at 1.
Respondent further argues that Petitioner's ...