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REPORT AND RECOMMENDATION

RE: INDEFINITE DETENTION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

VISHAL SINGH UPPAL,

Petitioner,

v.

MICHAEL CHERTOFF, et al.,

Respondent.

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CASE NO. C06-0261-JLR

REPORT AND RECOMMENDATION

RE: INDEFINITE DETENTION

I. INTRODUCTION AND SUMMARY CONCLUSION

Petitioner is a native and citizen of India who is being detained by United States

Immigration and Customs Enforcement (“ICE”) pursuant to an order of removal that became final

on September 1, 2005. On February 23, 2006, petitioner 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. (Dkt. #4). Respondents contend that petitioner’s detention is warranted

because ICE has received the necessary travel documents and his removal is likely in the

reasonably foreseeable future. (Dkt. #14).

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

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(Dkt. #4) be DENIED and respondents’ motion to dismiss (Dkt. #14) be GRANTED.

II. BACKGROUND AND PROCEDURAL HISTORY

Petitioner Vishal Singh Uppal is a native and citizen of India. (Dkt. #16 at L5-11). On

November 16, 1996, he entered the United States at San Francisco, California as a B-2 nonimmigrant visitor for pleasure with authorization to remain in the United States until April 15,

1997. Id. On February 10, 1997, petitioner filed an I-598 application for asylum. Id. On June

8, 1999, the former Immigration and Naturalization Service (“INS”) denied petitioner’s application

for asylum finding him not credible due to “material inconsistencies between [his] testimony and

application” and referred petitioner’s case to an Immigration Judge (“IJ”). (Dkt. #16 at R30). The

same day, the INS issued a Notice to Appear charging petitioner with removal pursuant to section

237(a)(1)(B) of the Immigration and Nationality Act (“INA”) because he remained in the United

States longer than permitted. (Dkt. #16 at R88). On July 15, 2004, an IJ denied petitioner’s

applications for asylum, withholding of removal, and protection under the Convention Against

Torture, and ordered him removed to India. (Dkt. #16 at L224). Petitioner appealed the IJ’s

decision to the Board of Immigration Appeals (“BIA”). On September 1, 2005, the BIA affirmed

the IJ’s decision and dismissed the appeal. (Dkt. #16 at L264).

On February 23, 2006, petitioner filed the instant habeas petition. (Dkt. #4). On March

13, 2006, petitioner also filed a Petition for Review and a Motion for Stay with the United States

Court of Appeals for the Ninth Circuit. (Case No. 06-71454). The same day the Ninth Circuit

entered a temporary stay of removal. On June 9, 2006, the Ninth Circuit dismissed the appeal

based on lack of jurisdiction because petitioner’s appeal was not filed within 30 days from the

issuance of the BIA’s September 1, 2005, order.

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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

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

forward with “good reason to believe 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

November 17, 2005. Thus, petitioner’s six-month presumptively reasonable removal period

expired on or about May 17, 2006. Respondents contend that petitioner’s continued detention

is warranted because ICE has secured travel documents for his removal to India and the only thing

preventing his removal is his Petition for Review and related temporary stay of removal. (Dkt.

#14 at 6). However, the Ninth Circuit has since dismissed petitioner’s appeal and stay of removal.

Accordingly, there are no longer any barriers to petitioner’s removal. As petitioner has failed to

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support any assertion that his removal is not reasonably foreseeable, the Court must deny habeas

relief. See Zadvydas , 533 U.S. at 701; see also Khan v. Fasano, 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).

IV. CONCLUSION

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

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

Recommendation.

DATED this 12th day of June, 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

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