United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Talwani United States District Judge
before this court is Respondent Steven W. Tompkins'
Renewed Motion to Dismiss [#20] Petitioner Mohamed
Kenneh's Petition for Writ of Habeas Corpus
(“Petition”) [#1]. Respondent also filed a
Status Report and Notice of Intent to Remove [#25]
on June 14, 2017. For the reasons set forth below,
Respondent's Renewed Motion to Dismiss [#20] is
Factual and Procedural Background
is a native and citizen of Liberia who entered the United
States as a Lawful Permanent Resident on November 1, 2000.
Pet. ¶¶ 1, 7 [#1]. On April 7, 2016, after
conviction for violation of an abuse prevention order,
Petitioner was taken into ICE custody and charged with being
deportable pursuant to section 237(a)(2)(A)(iii) of the
Immigration and Nationality Act. Id. ¶ 7. On
July 11, 2016, the Executive Office for Immigration Review in
Boston, Massachusetts, ordered Petitioner removed to Liberia,
id. ¶ 8, and on August 1, 2016, ICE submitted a
travel document request to the Embassy of Liberia, Mem. Supp.
Mot. Dismiss, Decl. Deportation Officer David Scarberry
(“First Scarberry Decl.”) ¶ 6 [#12-1]. On
August 23, 2016, the Liberian government interviewed
Petitioner and in October 2016, ICE submitted to the Liberian
government a set of Petitioner's identity documents.
Id. On October 15, 2016, at Petitioner's
request, ICE reviewed Petitioner's detention status and
concluded that he would not be released. Pet. ¶ 10 [#1].
December 8, 2016, the Liberian government again interviewed
Petitioner, First Scarberry Decl. ¶ 6 [#12-1], and on
January 11, 2017, at Petitioner's request, ICE again
reviewed Petitioner's detention status, Pet. ¶ 11
[#1]. ICE concluded that Petitioner would not be released.
Id. ICE did not have the requested travel documents
at that time, but stated that Petitioner's removal was
anticipated in the reasonably foreseeable future. Pet. ¶
11 [#1]. Sometime in March 2017, ICE submitted additional
identity documents to the Liberian government. First
Scarberry Decl. ¶ 6 [#12-1].
filed his petition for a writ of habeas corpus on March 23,
2017, stating that because he had been detained for over six
months, and because there was not a significant likelihood of
his removal in the reasonably foreseeable future, he should
be released. See generally, Pet. [#1]. On March 24,
2017, this court ordered Respondent to respond to the
petition by April 14, 2017, and in any event, to give the
court 48 hours' notice prior to any removal of Petitioner
from the District of Massachusetts. Order [#4].
April 13, 2017, Respondent notified the court of his intent
to remove Petitioner from the District of Massachusetts to
Louisiana on April 17, 2017, “for staging for his
anticipated removal to Liberia.” Notice Intent Remove
[#8]. That same day, the court ordered Respondent to file an
affidavit by 12:00 PM on April 14, 2017, “stating
whether or not ICE has received the required travel documents
from the Government of Liberia, and attesting whether or not
Petitioner's imminent removal to Liberia is
certain.” Order [#9]. It also directed Respondent to
respond to the original Petition by April 14, 2017, as
originally ordered. Id.
filed a Motion to Dismiss [#11] on April 14, 2017,
asserting that Petitioner's removal was “to be
effectuated in the reasonably foreseeable future, ” and
thus that the Petition should be dismissed. Mem. Supp. Mot.
Dismiss 1-2 [#12]. Deportation Officer David Scarberry
(“Scarberry”) submitted a declaration in support
of that motion, stating that he met with the Liberian Embassy
on April 13, 2017, and was informed that Liberia would not
yet issue travel documents. First Scarberry Decl. ¶ 7
[#12-1]. Scarberry stated that in light of that fact, ICE had
cancelled Petitioner's transfer to Louisiana.
Id. He also stated that in light of recent removal
statistics regarding Liberians, he still believed that
“there is a significant likelihood that the petitioner
will be removed in the reasonably foreseeable future.”
Id. ¶¶ 8-9. On May 8, 2017, Scarberry
submitted a further declaration stating that on May 4, 2017,
ICE provided further information to the Liberian government,
and that the Liberian government had informed ICE that it
would make its decision after speaking with Petitioner's
family. Decl. Deportation Officer David Scarberry
(“Second Scarberry Decl.”) ¶¶ 8-9
[#17]. He further stated that ICE would schedule
Petitioner's removal within two weeks of the date of
issuance of the requested travel documents. Id.
¶ 10. However, as of May 8, 2017, ICE had not yet
received those documents.
9, 2017, this court held a hearing on Respondent's
Motion to Dismiss [#11]. After the hearing, the
court denied the Motion to Dismiss [#11] without
prejudice, but allowed Respondent the opportunity to file a
renewed motion at a later date. Order [#18]. Respondent filed
his Renewed Motion to Dismiss [#20] on May 16, 2017.
In support of that motion, Scarberry submitted a further
declaration, reporting that the Liberian government spoke
with Petitioner's brother on May 8, 2017, and that on May
12, 2017, the Liberian government had informed ICE that prior
to a June 12, 2017, scheduled charter flight to Liberia, it
would decide whether to issue travel documents for
Petitioner. Decl. Deportation Officer David Scarberry
(“Third Scarberry Decl.”) ¶¶ 11-12
[#21-1]. He further stated that ICE expected to remove
Petitioner either on the June 12, 2017, charter flight, or
within three weeks of the date of issuance of the travel
documents. Id. ¶ 12. However, ICE had not yet
received the requested travel documents.
14, 2017, Respondent filed a Status Report and Notice of
Intent to Remove [#25], explaining that the Liberian
Embassy had issued the requested travel documents on June 12,
2017, and that the Department of Homeland Security intends to
remove Petitioner to Liberia via charter flight scheduled for
the week of July 17, 2017. Decl. Deportation Officer David
Scarberry (“Fourth Scarberry Decl.”) ¶¶
6-7 [#25-1]. Petitioner has now been held in ICE custody for
over fourteen months.
Supreme Court in Zadvydas v. Davis recognized six
months as a presumptively reasonable period of post-final
order, pre-removal detention. 533 U.S. 678, 701 (2001). After
this six month period expires, a petitioner may seek release
from custody by providing “good reason to believe that
there is no significant likelihood of removal in the
reasonably foreseeable future . . . .” Id. The
government bears the burden of responding with
“evidence sufficient to rebut that showing.”
to June 14, 2017, Respondent had not provided evidence
sufficient to show a significant likelihood of removal in the
reasonably foreseeable future. Rather, Respondent reported
statistics regarding the removal of other Liberian citizens.
But those statistics provide this court with little
information from which to glean what will happen in
Petitioner's case. Respondent also submitted
representations of conversations with the Liberian
government, each of which explained that Liberia was still
considering whether to issue the requested travel documents
for Petitioner's removal. Further, until May 16, 2017,
Respondent could not provide this court with a timetable for
when the Liberian government would decide whether to issue
the documents, nor a timetable for when the Liberian
government would issue such documents if it decided to do so.
As explained at the court's May 9, 2017, hearing, such
amorphous, secondhand statements are insufficient evidence of
whether Petitioner's removal is likely to occur in the
reasonably foreseeable future.
has, after many months of uncertainty, finally met its
burden. On June 14, 2017, Scarberry reported that ICE was
then in possession of the requested travel documents, which
would allow for Petitioner's removal to Liberia the week
of July 17, 2017. Fourth Scarberry Decl. ¶¶ 6-7
[#25-1]. Based on these representations, the court finds that
Respondent has now ...