United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Nathaniel M. Gorton, United States District Judge
reasons set forth below, the Court dismisses this action
January 26, 2018, immigration detainee Rolando Penate-Diaz
(“Penate-Diaz”), who is confined at the Plymouth
County Correctional Facility, filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2241 in which he seeks
immediate release. According to the petitioner, he is a
native and citizen of Cuba who arrived in the United States
as a refugee in 1980. In May 1996, he was ordered removed but
remained in the United States. At some point, the United
States tried to remove Penate-Diaz to Cuba, but his native
country would not accept him.
September 26, 2017, the petitioner was placed in immigration
detention, presumably for purposes of removal. See 8
C.F.R. § 241.4(1)(2)(iii) (government may revoke release
of certain aliens when “it is appropriate to enforce a
removal order”); 8 C.F.R. § 212.12(h) (providing
for revocation of parole for Mariel Cubans when
“appropriate to enforce an order of exclusion”).
A custody review was performed on December 26, 2016.
Penate-Diaz remained in custody, but he was never informed
why the government would not release him. He maintains that
he is not a flight risk, that he has been living in
Massachusetts for 30 years, and that he has strong family
support and ties to the community. He represents that his
removal to Cuba is not reasonably foreseeable because,
“Cuba doesn't recognize its citizens and I.C.E. has
tried to deport [him] in the past.” Pet. at 7 (spelling
petition has not been served so that the Court may review the
pleading and determine whether the respondent should be
required to reply. See 28 U.S.C. § 2243
(providing that, if “it appears from the application
[for a writ of habeas corpus] that the applicant . . . is not
entitled [to the writ], ” the district court is not
required to serve the petition on the
respondent). For the reasons stated below, the Court
denies the petition and dismisses this action.
1231 of Title 8 provides that the Attorney General shall
remove aliens who have been ordered removed within ninety
days, and that he may detain the alien during this
“removal period.” 8 U.S.C. § 1231(a)(1),
(2). Given that Penate-Diaz represents that he was ordered
removed in 1996, and he does not suggest that his immigration
case has been reopened, the Court assumes that the
petitioner's ninety-day removal period expired long
U.S.C. § 1231(a)(6), certain classes of aliens may be
detained beyond the ninety-day removal period. See 8
U.S.C. § 1231(a)(6). While § 1231(a)(6) does not
explicitly limit the time period during which the Attorney
General may detain an alien, in Zadvydas v. Davis,
the Supreme Court held that due process considerations
mandate that detention under § 1231(a)(6) be limited
“to a period reasonably necessary to bring about that
alien's removal from the United States.”
Zadvydas, 533 U.S. at 689. For the sake of
uniformity, the Court adopted a six-month period as the
presumptively reasonable time period for accomplishing
removal. See id. at 701. After this six-month
period, detention of the alien is no longer permissible if
there is “no significant likelihood of removal in the
reasonably foreseeable future.” Id.
Penate-Diaz, by his own admission, has been in immigration
detention awaiting removal for less than six
months.Therefore, under Zadvydas, his
continued detention is presumptively reasonable. Further,
despite the petitioner's claim that removal to Cuba is
impossible, a change in diplomatic relationships now permits
the United States to repatriate some individuals to Cuba.
See Martinez v. Moniz, C.A. No.
17-12365-DJC (D. Mass.) (case dismissed after government
informed court that habeas petitioner was removed to Cuba on
December 29, 2017); see also Padron v.
Donelan, C.A. No. 17-30176-MGM (D. Mass), Docket # 9
(respondent's memorandum in support of motion to dismiss;
respondent sets forth process by which persons may now be
repatriated from the United States to Cuba).
accordance with the foregoing, the petition for a writ of
habeas corpus is DENIED WITHOUT PREJUDICE.
The Clerk shall enter an order dismissing this action.