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REPORT AND RECOMMENDATION: 

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CHARANJIT SINGH,

Petitioner,

v.

ALBERTO GONZALES, et al.,

Respondents.

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CASE NO. C06-0700-JLR

REPORT AND RECOMMENDATION: 

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I. INTRODUCTION AND SUMMARY CONCLUSION

Petitioner is a native and citizen of India who is being detained by U.S. Immigration and

Customs Enforcement (“ICE”) pursuant to a final order of removal that became final on May 29,

2003. On May 17, 2006, petitioner filed 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. #3). Petitioner requests that he be released from custody pending his removal from

the United States. Respondents argue that petitioner’s continued detention is authorized by

Section 241(1)(C) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(a)(1)(C),

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1

 Effective March 1, 2003, the Immigration and Naturalization Service (“INS”) was

abolished pursuant to the Homeland Security Act of 2002, 116 Stat. 2135, Pub. L. 107-296,

codified at 6 U.S.C. § § 101, et seq., and its immigration removal functions were transferred to

the United States Immigration and Customs Enforcement (“ICE”), which is part of the

Department of Homeland Security (“DHS”).

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because petitioner’s removal has been suspended and extended due to his “failure and refusal to

make timely application in good faith for travel or other documents necessary to his removal.”

(Dkt. #11 at 2).

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

(Dkt. #3) be GRANTED and respondents’ motion to dismiss (Dkt. #11) be DENIED.

II. BACKGROUND AND PROCEDURAL HISTORY

Petitioner Charanjit Singh is a native and citizen of India. (Dkt. #15 at L73, L58). On

April 30, 1991, he entered the United States at San Francisco International Airport and sought

asylum. (Dkt. #15 at R125). An Immigration Judge (“IJ”) granted petitioner asylum on June 24,

1992, and petitioner adjusted his status to that of Lawful Permanent Resident (“LPR”) on

November 5, 1993. (Dkt. #15 at L76-80).

Petitioner left the United States for Canada in 1997, where he applied for but was denied

refugee status, and resided there until 2002. (Dkt. #15 at L308). On December 13, 2002,

petitioner was detained by the former Immigration and Naturalization Service 1 (“INS”) while

attempting to re-enter the United States at Sumas, Washington without a valid entry card. The

INS determined that petitioner had effectively abandoned his LPR status when he left the United

States for Canada and resided there for over five years.

The INS issued a Notice to Appear, placing petitioner in removal proceedings and charging

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petitioner with being subject to removal pursuant to INA § 212(a)(6)(C)(i) (relating to

misrepresentation), and INA § 212(a)(7)(A)(i)(I) (relating to documentation requirements). (Dkt.

#15 at L103). On February 3, 2003, an IJ found petitioner removable, ineligible for relief from

removal, and ordered him removed to India. (Dkt. 315 at L242). Petitioner appealed the IJ’s

decision on February 24, 2003. On May 29, 2003, the Board of Immigration Appeals (“BIA”)

denied petitioner’s appeal. (Dkt. #15 at L259-60). On June 30, 2003, petitioner timely filed an

appeal with the Ninth Circuit Court of Appeals. (Dkt. #19, Ex. C). On March 11, 2004, the BIA

reissued its decision sua sponte because the BIA’s order dated May 29, 2003, had been returned

as undeliverable by the United States Postal Service. (Dkt. #15 at R228-30). On August 2, 2004,

petitioner filed a letter with the Ninth Circuit requesting a stay of removal. (Dkt. #19). On

August 16, 2004, the Ninth Circuit denied petitioner’s appeal, mooting his request for a stay of

removal. (Dkt. #15 at L324-26).

A. Removal Efforts

Petitioner has been in ICE custody since December 13, 2002. (Dkt. #15 at L102-03). On

August 6, 2003 and March 11, 2004, ICE issued a Form I-229(a) “Warning for Failure to Depart,”

advising petitioner of the consequences for failing to assist in obtaining travel documents necessary

for his removal. (Dkt. #15 at R136, R140).

On January 21, 2005, petitioner was served with another Warning for Failure to Depart

and a “Notice of Failure to Comply Pursuant to 8 CFR 241.4(g),” stating that he had failed to

comply with his obligation to assist in obtaining travel documents, and that his removal period

would be extended. (Dkt. #R149, R147).

On March 29, 2005, petitioner was served with another Warning for Failure to Depart.

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(Dkt. #15 at R150). On March 30, 2005, ICE drafted a request for travel documents, but

petitioner refused to cooperate. (Dkt. #15 at R162-69, R176). On October 13, 2005, ICE issued

a second Notice of Failure to Comply, advising petitioner that he had failed to comply with his

obligation to assist in obtaining travel documents, and that his removal period would be extended.

(Dkt. #R181).

On November 13, 2005, petitioner stated on a Detainee Request Form that he wanted to

go home to India and wished to cooperate in obtaining travel documents. (Dkt. #15 at R183-86).

Petitioner’s deportation officer responded that he would get the travel documents to him and that

his new 90-day removal period would begin on November 15, 2005. (Dkt. #15 at R255).

On January 17, 2006, petitioner’s counsel contacted his deportation officer and asked if

there were any concerns regarding petitioner’s cooperation, but ICE officers did not respond to

the inquiry. (Dkt. #19, Ex. A). On February 28, 2006, ICE issued another Warning for Failure

to Depart. (Dkt. #15 at R216). That same day, petitioner filled out a personal questionnaire (Dkt.

#15 at R244), and was provided an Indian passport application to complete. (Dkt. #15 at R217-

226). Petitioner’s deportation officer noted that petitioner was in compliance with his obligations

to assist in his removal. (Dkt. #15 at R256). On March 1, 2006, petitioner completed a request

for an Indian passport, and ICE forwarded the request, along with other documents, to the Indian

Consulate in San Francisco, California. (Dkt. #15 at R242, R245, R256). On March 21, 2006,

another request for travel documents was sent to the Indian Embassy. Id. On May 8, 2006,

petitioner’s deportation officer contacted ICE headquarters and was informed that it “could be

another 90 days before they get any information.” Id.

/ / /

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B. File Custody Review

On August 19, 2004, ICE conducted a Post Order Custody Review. (Dkt. #15 at R127-

133). The review stated that petitioner has refused to cooperate in obtaining travel documents,

and recommended that petitioner remain in ICE custody until he cooperates with obtaining travel

documents. (Dkt. #15 at R129). On September 29, 2005, ICE conducted a second Post Order

Custody Review. (Dkt. #15 at R173-79). The review stated that petitioner “remains steadfast in

his refusal to cooperate,” and recommended that petitioner remain in ICE custody until either a

travel document is issued or petitioner elects to cooperate, which would then begin the final

removal period. (Dkt. #15 at R173). On November 17, 2005, ICE issued a Notice to Alien of

File Custody Review, indicating that ICE would conduct another file review on February 15, 2006.

(Dkt. #15 at R188). The administrative record contains no further custody reviews.

III. DISCUSSION

The post-removal-detention statute, INA § 241(a), 8 U.S.C. § 1231(a), provides for the

mandatory detention of aliens awaiting removal from the United States for an initial period of three

months. This three months may be followed by an additional three months discretionary detention

during which detention remains presumptively valid. Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct.

2491, 2505, 150 L. Ed. 2d 653 (2001).

In Zadvydas, 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 in confinement until it has been determined that there is no significant likelihood of

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2

 An order of removal becomes administratively final upon a determination by the BIA

affirming such order. INA § 101(47), 8 U.S.C. § 1101(47); 8 C.F.R. § 241.1(d). Although the

BIA reissued its decision on March 11, 2004, petitioner had already filed a petition for review of

the BIA’s original decision with the Ninth Circuit within the 30-day deadline required by 8 U.S.C.

§ 1252(b)(1), vesting jurisdiction in the Ninth Circuit over the BIA’s May 29, 2003, decision.

See Roy v. Ashcroft, 389 F.3d 132, 136 (5th Cir. 2004). The Ninth Circuit dismissed petitioner’s

petition for review without ordering a stay of petitioner’s removal. Accordingly, petitioner’s order

of removal became administratively final and the 90-day removal period began on May 29, 2003.

See INA § 241(a)(1)(B), 8 U.S.C. § 1231(a)(1)(B).

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removal in the reasonably foreseeable future.” Id. The petitioner has the burden of coming

forward with “good reason to believe that there is no significant 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.

In this case, petitioner has been in ICE custody following a final order of removal since

May 29, 2003.2 Thus, the 90-day removal period expired on or about August 29, 2003, and the

six-month presumptively reasonable removal period expired on or about November 29, 2003.

Respondents contend that petitioner’s continued detention is authorized by 8 U.S.C. §

1231(a)(1)(C) because petitioner’s removal has been suspended and extended due to his “failure

and refusal to make timely application in good faith for travel or other documents necessary to his

removal.” (Dkt. #11 at 2). Respondents assert that petitioner did not begin cooperating with ICE

officials until February 28, 2006, when he completed and signed his passport application. (Dkt.

#11 at 6, Dkt. #23). Respondents further contend that ICE has been successful in repatriating

Indian citizens, and that petitioner’s removal is likely in the reasonably foreseeable future. (Dkt.

#23 at 2).

Petitioner argues that extension of the removal period is not authorized by 8 U.S.C. §

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1231(a)(1)(C) and that his extended detention pursuant to this provision violates his due process

rights. (Dkt. # 18 at 7). Petitioner asserts that ICE failed to comply with its own regulations

when it purported to extend petitioner’s detention pursuant to 8 U.S.C. § 1231(a)(1)(C) without

serving petitioner with a “Notice of Failure to Comply” before the expiration of the 90-day

removal period. See 8 C.F.R. § 241.4(g)(1)(ii). Petitioner further argues that his detention is

unlawful because there is no reasonable likelihood that he will be removed in the foreseeable

future. (Dkt. #18 at 11-14).

Pursuant to INA § 241(a)(1)(C), “the removal period shall be extended . . . and the alien

may remain in detention during such extended period if the alien fails or refuses to make timely

application in good faith for travel or other documents necessary to the alien’s departure or

conspires or acts to prevent the alien’s removal subject to an order of removal.” 8 U.S.C. §

1231(a)(1)(C). The Ninth Circuit has interpreted Section 241(a)(1)(C) as authorizing continued

detention of a removable alien “so long as the alien fails to cooperate fully and honestly with

officials to obtain travel documents.” Lema v. I.N.S., 341 F.3d 853, 857 (9th Cir. 2003)(emphasis

added); see also Pelich v. I.N.S., 329 F.3d 1057, 1060 (9th Cir. 2003)(holding that Zadvydas does

not apply where an alien holds the “‘keys [to his freedom] in his pocket’ and could likely effectuate

his removal by providing the information requested by the INS.”). Section 241(a)(1)(C) is

implemented by regulation found at 8 C.F.R. § 241.4(g), which provides that the removal period

“shall be extended until the alien demonstrates to the Service that he or she has complied with the

statutory obligations. Once the alien has complied with his or her obligations under the law, the

Service shall have a reasonable period of time in order to effectuate the alien’s removal.” 8 C.F.R.

§ 241.4(g)(1)(ii)(emphasis added). The regulation further provides that ICE shall serve the alien

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with a Notice of Failure to Comply before the expiration of the removal period, which will advise

the alien of the following:

(1) the provisions of INA § 241(a)(1)(C) (extension of removal period) and 243(a)

(criminal penalties related to removal);

(2) the circumstances demonstrating his or her failure to comply with the requirements

of INA § 241(a)(1)(C); and

(3) an explanation of the steps that the alien must take in order to comply with the

statutory requirements.

8 C.F.R. § 241.4(g)(5)(ii).

Here, ICE failed to comply with its own regulations when it purported to extend

petitioner’s detention pursuant to INA § 241(a)(1)(C) without issuing a Notice of Failure to

Comply within the 90-day removal period, indicating that petitioner is not in compliance and what

steps he must take to be in compliance. Rather, respondents did not issue a Notice of Failure to

Comply until January 21, 2005 – seventeen months after the 90-day removal period expired.

Although respondents issued a Warning for Failure to Depart in August 2003, the warning is

merely a form given to every detainee and provides no indication that petitioner has failed to

cooperate or that the removal period has been extended. (Dkt. #15 at R136). According to the

Code of Federal Regulations, Notice of Failure to Comply and extension of the removal period

must be provided before the removal period expires. 8 C.F.R. § 241.4(g)(1)(ii)(requiring that ICE

provide notice of failure to comply “before the expiration of the removal period”); see also 8

C.F.R. § 241.4(g)(1)(iii)(providing that ICE shall advise the alien that the notice of failure to

comply shall extend the removal period, “if the removal period has not yet expired.”).

Consequently, ICE cannot rely on Section 241(a)(1)(C) to extend the removal period that expired

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seventeen months earlier. Furthermore, although petitioner initially refused to cooperate, the

administrative record indicates that petitioner began cooperating in November 2005. Accordingly,

ICE’s claim that petitioner has failed to cooperate is now moot. See Lema, 341 F.3d at 857; see

also 8 C.F.R. § 241.4(g)(1)(ii).

Alternatively, respondents contend that petitioner’s continued detention is lawful because

petitioner’s repatriation to India will occur in the reasonably foreseeable future. (Dkt. #23 at 2).

Respondents assert that ICE has been successful in repatriating Indian citizens and that ICE has

done all it can to obtain travel documents from India. Id. Petitioner challenges respondents’ claim

that he will be removed in the reasonably foreseeable future, contending that two travel document

requests have been sent to the Indian Embassy, and the only feedback ICE has received regarding

the travel documents is a May 8, 2006, statement that it “[c]ould be another 90 days before [ICE]

get[s] any information.” (Dkt. #15 at R256).

The Court finds that petitioner has met the Zadvydas standard of showing that there is no

significant likelihood he will be removed in the reasonably foreseeable future. Petitioner has fully

cooperated with ICE’s efforts to obtain a travel document for him since November 2005. ICE,

however, has provided no substantive indication regarding how or when it expects to obtain the

necessary travel document from the Indian government. Rather, ICE merely asserts that it has

followed up on its request for travel documents from India and done all it can. (Dkt. #23 at 2).

This is not sufficient evidence to rebut petitioner’s showing that he is unlikely to be removed in

the reasonably foreseeable future.

Accordingly, the Court finds that petitioner has shown that there is no significant likelihood

of his removal to India in the reasonably foreseeable future. The six-month period established by

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the Supreme Court in Zadvydas expired on November 29, 2003, and petitioner should be released.

IV. CONCLUSION

For the foregoing reasons, I recommend that the Court GRANT petitioner’s habeas

petition and order petitioner’s release on conditions. Such conditions may include those set forth

in 8 C.F.R. § 241.5(a). A proposed Order accompanies this Report and Recommendation.

The Clerk is directed to also send a copy of this Order to the Honorable James L. Robart.

DATED this 17th day of August, 2006.

A

Mary Alice Theiler

United States Magistrate Judge

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