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REPORT AND RECOMMENDATION 

PAGE – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ANGREJ SINGH,

Petitioner,

v.

ALBERTO R. GONZALES, et. al, 

Respondents.

CASE NO. C05-1686-JLR-JPD

REPORT AND

RECOMMENDATION

I. INTRODUCTION AND SUMMARY CONCLUSION

Petitioner Angrej Singh is a native and citizen of India who is currently in the custody of the

United States Immigration and Customs Enforcement (“ICE”). On October 5, 2005, he filed, pro

se, a Petition for Writ of Habeas Corpus pursuant to 8 U.S.C. § 2241, challenging the constitutional

and statutory authority of ICE to detain him any further due to the unlikelihood of his removal from

the United States in the reasonably foreseeable future. (Dkt. #1). Respondents argue that petitioner

fails to state an actionable claim of indefinite detention or otherwise demonstrate any deprivation

of a statutory or constitutional right. (Dkts. #9 at 7, #15 at 2). 

Having carefully reviewed the entire record, I recommend that petitioner’s habeas petition

(Dkt. #1) be DENIED and respondents’ motion to dismiss (Dkt. #9) be GRANTED.

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REPORT AND RECOMMENDATION 

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II. BACKGROUND AND PROCEDURAL HISTORY

Petitioner Angrej Singh is a native and citizen of India. (Dkt. #1). On May 31, 1992, he

sought entry into the United States at Detroit, Michigan. (Dkt. #8 at 71). Petitioner was inspected

and detained as an intending immigrant without documentation and applied for political asylum.

(Dkt. #9 at 71, 143). On July 2, 1992, the former Immigration and Naturalization Service (“INS”)

conducted an asylum pre-screening interview and granted petitioner immigration parole into the

United States. On January 20, 1993, the INS conducted a formal asylum interview. On May 26,

1993, the INS denied petitioner’s application for asylum, finding that petitioner had failed to

establish a well-founded fear of persecution. (Dkt. #9 at 64). Petitioner, through counsel,

submitted an administrative appeal of the asylum decision. The INS denied petitioner’s appeal.

(Dkt. #10 at S-8).

On May 26, 1994, the INS terminated petitioner’s parole and issued a Form I-122 Notice

to Applicant for Admission Detained for Hearing Before Immigration Judge, placing petitioner in

exclusion proceedings, and charging petitioner as an intending immigrant not in possession of an

immigrant visa, and as a nonimmigrant not in possession of a valid passport or nonimmigrant visa.

(Dkt. #9 at 165). Petitioner’s exclusion hearing before an Immigration Judge (“IJ”) was scheduled

for September 9, 1996. (Dkt. #9 at 97). In accord with asylum regulations, petitioner was

permitted to renew his asylum request in the Immigration Court proceedings. In connection with

petitioner’s renewed asylum application, the Executive Office for Immigration Review (“EOIR”)

requested an advisory opinion from the United States Department of State on petitioner’s asylum

application. The State Department concluded that petitioner’s “description of events which led him

to seek asylum (his claimed membership in AISSF and his claim to have been mistreated because

of his religion and his political opinion) does not stand up to rigorous analysis.” (Dkt. #9 at 124).

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REPORT AND RECOMMENDATION 

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On September 9, 1996, petitioner’s attorney attended the exclusion hearing, but petitioner

failed to appear. Accordingly, the IJ determined that petitioner had abandoned his claims for relief

from exclusion and ordered petitioner excluded in absentia. (Dkt. #9 at 96). Petitioner did not

appeal the IJ’s order to the Board of Immigration Appeals (“BIA”) or to the Ninth Circuit Court

of Appeals. 

On May 18, 1996, petitioner, using the name Gurmej Singh Pahal, filed another application

for asylum. On April 2, 1996, the asylum office granted petitioner’s application for asylum under

the identity of Gurmej Singh Pahal. Id.

On September 17, 1996, the San Francisco, California asylum office received a letter from

petitioner stating that he had left the country. (Dkt. #10 at S-8; Dkt. #9 at 90). Petitioner failed

to appear for his scheduled removal from the United States to India on March 3, 1997. (Dkt. #10

at S-8).

On September 15, 1997, petitioner filed an application for adjustment of status with the INS

at Spokane, Washington. In January 1998, while petitioner’s application for adjustment of status

was pending, the INS received an anonymous letter, stating that Angrej Singh had lost his case

before the Immigration Judge, so he changed his name to Gurmej Singh Pahal, reapplied for asylum,

and won his case under a different name. Id. On March 12, 1998, the Spokane County Sheriff’s

office advised the INS that it had examined the fingerprints of Andrej Singh and Gurmej Singh Pahl

and determined that the prints came from the same person. (Dkt. #10 at S-14). On September 16,

2004, petitioner went to the Spokane Office to obtain travel documents to Canada for himself and

his family. Petitioner was taken into custody and held on the IJ’s September 9, 1996, order of

exclusion. (Dkt. #10 at S-8). Petitioner admitted that he is Andrej Singh. Id.

On September 17, 2004, the Department of Homeland Security (“DHS”) rescinded the grant

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REPORT AND RECOMMENDATION 

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of asylum to Andrej Singh under the identity of Gurmej Singh Pahal, stating that petitioner “was

improperly granted asylum as he was under an order of exclusion and had applied under an assumed

identity.” (Dkt. #10 at S-13).

On November 24, 2004, petitioner, through counsel, filed a motion to reopen his exclusion

proceedings. (Dkt. #9 at 58). On January 4, 2005, the IJ denied the motion to reopen. (Dkt. #9

at 40). The decision was timely appealed and was affirmed, without opinion, by the BIA on May

17, 2005. (Dkt. #9 at 2). On May 20, 2005, petitioner filed a Petition for Review and Motion to

Stay Deportation/Removal in the Ninth Circuit Court of Appeals. A stay was automatically granted

pursuant to the Ninth Circuit General Order 6.4. ICE thus suspended its efforts to obtain travel

documents from the Government of India permitting petitioner’s repatriation to that country. (Dkt.

#13 at S-26). Petitioner’s Petition for Review remains pending in the Ninth Circuit.

On October 5, 2005, petitioner filed the instant habeas petition. (Dkt. #1). On December

7, 2005, respondents filed a Return Memorandum and Cross-Motion to Dismiss. (Dkt. #9).

Petitioner did not file a reply.

III. DISCUSSION

A. Jurisdiction

Pursuant to Section 106 of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231

(codified at 8 U.S.C. § 1252), the exclusive means of asserting a challenge to a final order of

removal and matters dependent thereon is to file a Petition for Review with the appropriate court

of appeals. INA § 242(a)(5), (b)(2), 8 U.S.C. § 1252(a)(5), (b)(2). Here, however, petitioner does

not seek judicial review of the underlying removal order. Rather, he challenges the legality of his

continued detention under Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491, 150 L. Ed. 2d 653

(2001). As an initial matter, the Court finds that it has habeas jurisdiction to determine whether

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The Government has withdrawn its argument that this Court lacks jurisdiction to

entertain petitioner’s claim that he is entitled to release from detention pendente lite. (Dkt. #15

at 2).

REPORT AND RECOMMENDATION 

PAGE – 5

petitioner is being detained in violation of his statutory or constitutional rights. Zadvydas, 533

U.S. at 688. Accordingly, petitioner’s claim that he is entitled to release from detention pending

adjudication of his Petition for Review in the Ninth Circuit Court of Appeals is properly before

the district court on petition under 28 U.S.C. § 2241.1

B. Habeas Corpus Petition

Under INA § 241(a)(1), respondents are entitled to a 90-day period within which to remove

an alien from the United States, during which time detention is mandatory. The “removal period”

begins on the later of the following:

(i) The date the order of removal becomes administratively final.

(ii) If the removal order is judicially reviewed and if a court orders a stay of

the removal of the alien, the date of the court’s final order.

(iii) If the alien is detained or confined (except under an immigration process),

the date the alien is released from detention or confinement.

INA § 241(a)(1)(B). In Zadvydas the Supreme Court held that, beyond those 90 days, the

government is entitled to “a period reasonably necessary to bring about the alien’s removal from

the United States.” Zadvydas, 533 U.S. at 689. In determining what is a reasonable removal

period, the Court adopted “for the sake of uniform administration in the federal courts,” a

presumptively reasonable period of detention of six months. Id. at 701. 

The Supreme Court explained that after this six-month period, the alien is eligible for

conditional release upon demonstrating that there is “no significant likelihood of removal in the

reasonably foreseeable future.” Id. Nonetheless, the six month presumption “does not mean that

every alien not removed must be released after six months. To the contrary, an alien may be held

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Petitioner also claims that he is seriously ill and is in need of potential surgical

intervention. (Dkt. #1 at 4). To the extent that petitioner raises claims challenging the

conditions of his confinement, such claims must be brought in a separate civil rights action.

REPORT AND RECOMMENDATION 

PAGE – 6

in confinement until it has been determined that there is no significant likelihood of removal in the

reasonably foreseeable future.” Id. The petitioner has the burden of coming forward with “good

reason to believe there is no reasonable likelihood of removal in the reasonably foreseeable

future.” Id. Then the burden shifts to respondents to produce evidence which could rebut

petitioner’s showing. Id.

Petitioner argues for his release under Zadvydas, contending that his continued detention

pending resolution of his Petition for Review in the Ninth Circuit is unlawful because there is no

significant likelihood of his removal in the reasonably foreseeable future.2 (Dkt. #1 at 3). Here,

however, petitioner sought and was granted a stay of his removal order by the Ninth Circuit on May

20, 2005. This stay of removal remains in effect while petitioner’s petition for review is pending

in the Ninth Circuit. Unlike Zadvydas, petitioner is not being held indefinitely beyond the removal

period. Rather, petitioner is being held pursuant to the stay he has requested. Thus, this Court finds

that, as the stay is still in effect, the presumptively reasonable six month period has no yet begun

under INA § 241(a)(1)(B)(ii), 8 U.S.C. § 1231(a)(1)(B)(ii). Moreover, there is no indication that

petitioner’s removal to India is not reasonably foreseeable or that travel documents will not be

issued once his Petition for Review has been resolved and the stay is lifted. As petitioner has failed

to support any assertion that his future removal is not reasonably foreseeable, but for the existence

of the stay, the Court must deny habeas relief. See Zadvydas, 533 U.S. at 701; see also Khan v.

INS, 194 F. Supp. 2d 1134, 1137 (S.D. Cal. 2001)(finding that petitioner had not met his burden

under Zadvydas where petitioner failed to show any barriers to his repatriation to Pakistan).

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REPORT AND RECOMMENDATION 

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CONCLUSION

For the foregoing reasons, I recommend that respondents’ motion to dismiss be granted, and

that the action be dismissed. A proposed Order accompanies this Report and Recommendation.

DATED this 21st day of March, 2006.

AJAMES P. DONOHUE

United States Magistrate Judge 

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