United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Talwani United States District Judge
before this court is Petitioner Mohamed Kenneh's
Amended Petition for Writ of Habeas Corpus
[“Amended Petition”] [#28]. For the reasons set
forth below, the Amended Petition is GRANTED.
Factual and Procedural Background
is a native and citizen of Liberia who last entered the
United States as a legal permanent resident on November 1,
2000. Am. Pet. 1 [#28]; Notice & Order Ex. 1, at 6,
(“Decision to Continue Detention”) [#27-1].
Petitioner was subsequently convicted for violation of an
abuse prevention order, and was served with a form 1-862
Notice to Appear pursuant to 8 U.S.C. §
1227(a)(2)(E)(ii). Id. On April 7, 2016, Petitioner
was taken into ICE custody, and the order of removal issued
on June 10, 2016, became final on July 11, 2016. Id.
August 1, 2016, ICE submitted a travel document request to
the Embassy of Liberia. Id. On August 23, 2016, the
Liberian government interviewed Petitioner. Decl. Deportation
Officer David Scarberry (“First Scarberry Decl.”)
¶ 6 [#12-1]. On September 15, 2016, ICE's Boston
Field Office issued a decision to continue detention, stating
that if Petitioner had not been released or removed from the
United States by January 7, 2017, ICE Headquarters would make
a final decision regarding his custody. Pet. for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241, By Person
Subject to Indefinite Immigration Detention
(“Pet.”) ¶ 10 [#1]; Pet. Ex. 1, at 2 [#1-1].
October 2016, additional identity documents were submitted to
the Liberian government, and on December 8, 2016, the
Liberian government again interviewed Petitioner. First
Scarberry Decl. ¶ 6 [#12-1]. On January 11, 2017, ICE
advised Petitioner that it had reviewed his detention status,
and concluded that Petitioner would not be released. Pet.
¶ 11 [#1]. ICE had not received the requested travel
documents at that time, but nonetheless stated that
“[a] travel document from the Government of Liberia is
expected.” Pet. Ex. 1, at 3 [#1-1].
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 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].
in March 2017, additional identity documents were presented
to the Liberian government. First Scarberry Decl. ¶ 6
April 13, 2017, Respondent notified the court of ICE's
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]. The court ordered Respondent to file an
affidavit “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].
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]. In support of the motion (and presumably
in response to the court's order), Deportation Officer
David Scarberry (“Scarberry”) submitted a
declaration stating that he met with the Liberian Embassy on
April 13, 2017, and was informed that Liberia would not yet
issue a travel document. 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 based on 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 ICE provided
further information to the Liberian government on May 4,
2017, 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]. Scarberry further stated that ICE would schedule
Petitioner's removal within two weeks of the date of
issuance of the requested travel document. 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].
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 it would decide prior to a June 12, 2017, scheduled
charter flight to Liberia whether to issue a travel document
for Petitioner. Third 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
document. Id. ¶ 13. However, ICE still had not
yet received the requested travel document.
14, 2017, Respondent filed a Status Report and Notice of
Intent to Remove [#25], explaining that the Liberian
Embassy had issued the requested travel document on June 12,
2017, and that the Department of Homeland Security intended
to remove Petitioner to Liberia via a charter flight
scheduled for the week of July 17, 2017. Third [sic] Decl.
Deportation Officer David Scarberry (“Fourth Scarberry
Decl.”) ¶¶ 6-7 [#25-1]. Based on those
representations, the court dismissed the Petition
[#1]. Mem. & Order 5 [#26].
August 5, 2017, Petitioner filed an Amended Petition and
Motion to Expedite Adjudication of Petition [#28]. The
court granted the motion to expedite and set a hearing on the
Amended Petition [#28] for August 8, 2017. Elec.
Order [#30]. On August 8, 2017, Respondent filed a Fifth
Declaration of Deportation Officer David Scarberry
(“Fifth Scarberry Decl.”) [#31]. That declaration
advised the court for the first time that the ICE charter
flight scheduled for the week of July 17, 2017, “was
unexpectedly cancelled and moved to the week of August
7.” Id. ¶ 7. Moreover, Petitioner was not
placed on the August 7 flight, after ICE kept him off at the
request of the Liberian Embassy. Id. ¶ 8.
Scarberry now asserts that Petitioner is scheduled to be