United States District Court, D. Massachusetts
FRANCIS O. ENWONWU, Petitioner,
STEVEN SOUZA, Superintendant, Bristol County House of Correction and Jail Respondent.
MEMORANDUM AND ORDER
TALWANI UNITED STATES DISTRICT JUDGE.
Francis O. Enwonwu, an immigration detainee incarcerated at
the Bristol County House of Correction and Jail in North
Dartmouth, Massachusetts, seeks release from detention
pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001),
and Clark v. Martinez, 543 U.S. 371 (2005), on the
grounds that his removal to Nigeria is not reasonably
foreseeable. Petition for Writ of Habeas Corpus Under 28
U.S.C. § 2241 [#1]; Petition for Writ of Habeas
Corpus Under 28 U.S.C. § 2241 [#14].
Before the court is Respondent's Motion to Dismiss
Petitioner's Habeas Petition [#42]. For the
following reasons, Respondent's motion is ALLOWED.
a native of Nigeria, entered the United States as a legal
permanent resident in 2001. Petition 2-3 [#1]. In December
2010, Petitioner was convicted in Massachusetts state court
of armed assault with intent to rob, Mass. Gen. Laws. ch.
265, §18(b), and was sentenced to serve five to seven
years' imprisonment. See Decl. of Yolanda
Marfissi (“Marfissi Decl.”) ¶ 4 [#9-1]. The
Department of Homeland Security alleged that this conviction
constituted an aggravated felony and made Enwonwu removable
from the United States. Id.; see also 8
U.S.C. § 1227(a)(2)(A)(iii).
February 26, 2016, an Immigration Judge denied Enwonwu's
application for relief and ordered him removed to Nigeria.
Marfissi Decl. ¶ 5 [#9-1]. On March 8, 2017, after being
released from state custody, Enwonwu was transferred to the
custody of the United States Immigration and Customs
Enforcement. Id. ¶ 7; Petition 3 [#1]. The
Board of Immigration Appeals (BIA) affirmed the Immigration
Judge's removal order in September 2017 and dismissed
Enwonwu's appeal. In re: Francis Obiora Enwonwu,
File No. A047 998 975 - Boston, MA, Decision (B.I.A. Sept. 6,
2017) [#9-2]. On December 26, 2017, when Enwonwu initiated
the proceedings in this court, he was thus subject to a final
order of removal. Petition for Writ of Habeas Corpus
5, 2018, after the First Circuit affirmed the BIA's
decision, Enwonwu filed a motion to reopen and a request for
stay of removal with the BIA. In re: Francis Obiora
Enwonwu, File No. A047 998 975 - Boston, MA, Decision
(B.I.A. Sept. 18, 2018) [#42-2]. The BIA stayed Enwonwu's
removal on June 18, 2018, and granted his motion to reopen on
September 18, 2018. Id. The BIA remanded the case to
the Immigration Judge for further proceedings on
Enwonwu's removability and his claims for relief from
Motion to Dismiss [#42] followed, arguing that the
Supreme Court's decision in Zadvydas, the
predicate for the relief Enwonwu seeks, is no longer
applicable because Enwonwu is no longer subject to a final
order of removal and is currently in pre-final order
detention under 8 U.S.C. § 1226(c). Mot. to Dismiss 3-4
[#42]. Enwonwu has not filed an opposition and the time to do
so has passed.
concern[s] § 1231(a)(6), which authorizes the detention
of aliens who have already been ordered removed from the
country.” Jennings v. Rodriguez, 138 S.Ct.
830, 843 (2018). Once the BIA granted Enwonwu's motion to
reopen, Enwonwu's final removal order was vacated and
therefore he has not been “ordered removed from the
country.” And, because the authorization for his
detention therefore is no longer section 1231(a), but 8
U.S.C. § 1226(c), the relief Enwonwu seeks pursuant to
Zadvydas and Clark is not available to him.
Respondent's Motion to Dismiss [#42] is ALLOWED
and Enwonwu's Petition[s] for Writ of Habeas Corpus
Under 28 U.S.C. § 2241 [##1, 14] are DISMISSED.
 At the time he filed his petition,
Enwonwu was in immigration detention at the Plymouth County
House of Corrections. Petition [#1]. Enwonwu named as
Respondents Plymouth County House of Corrections
Superintendent Antone Moniz, Sheriff Joseph D. McDonald,
Plymouth County Correctional Facility, Department of Homeland
Security, and Immigration and Customs Enforcement.
Id. As Enwonwu raised his habeas petition pursuant
to 28 U.S.C. § 2241, Respondent Antone Moniz was the
only proper respondent at that time. Service Order [#5]
(citing Rumsfield v. Padilla, 542 U.S. 426, 439
(2004) (Proper respondent in a § 2241 habeas petition is
the immediate custodian of petitioner)). Respondent's
most recent Motion to Dismiss [#42] informs the
court that Enwonwu is now being detained at the Bristol
County House of Correction and Jail, and his “immediate
custodian” is therefore Superintendant Steven Souza.
Resp't's Mot. to Dismiss [#42]. Respondent has
captioned his motion accordingly. Id. The court
 Respondent's counsel informs the
court that he conferred with Enwonwu's counsel and,
although she could not consent, she would take no position