UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

:

FELIX D. FORBES, :

Petitioner : No. 4:CV-05-0297

:

vs. : (Petition Filed 02/10/05)

:

: (Judge Muir)

BUREAU OF IMMIGRATION AND : 

CUSTOMS ENFORCEMENT, :

:

Respondent :

ORDER

July 12, 2005

Felix D. Forbes (“Forbes”), a native and citizen of

Columbia, filed this petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241 on February 10, 2005, challenging

his prolonged detention by the Bureau of Immigration and

Naturalization Service (“ICE”), as well as his final order of

removal. A response and traverse having been filed, the

petition is ripe for disposition. For the reasons that follow,

petitioner's challenge to his continued detention will be

dismissed as premature, and the respondent will be directed to

file a supplemental brief indicating whether petitioner's

challenge to his final order of removal should be transferred

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to a United States Court of Appeals, pursuant to the REAL ID

Act of 2005, H.R. 1268, 109th Cong. (2005). 

Background

On June 16, 1991, Forbes entered the United States as

a non-immigrant. (Doc. No. 8, Ex. A). He was not lawfully

admitted for permanent residence. Id. 

On September 11, 2001, he was convicted in the United

States District Court for the Middle District of Florida for

the offenses of Conspiracy to Possess with Intent to Distribute

in excess of 100 grams of heroin, in violation of Title 21

United States Code, Sections 846 and 841(b)(1)(B)(i). (Doc. No.

8, Exhibit C). On January 7, 2002, he was sentenced to a

thirty-seven (37) month term of imprisonment. Id. 

On March 11, 2002, ICE served petitioner with a Notice

of Intent to Issue a Final Administrative Removal Order

pursuant to Section 238(b) of the Immigration and Nationality

Act (“INA”). (Doc. No. 8, Ex. A). This Notice of Intent

charged that petitioner was removable from this country

pursuant to Section 237(a)(2)(A)(iii) of the INA, 8 U.S.C. §

1227(a)(2)(A)(iii), as an alien convicted of an aggravated

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felony as defined in § 101(a)(43) of the INA, 8 U.S.C. § 1101

(a)(43). Id.

On May 22, 2002, a Final Administrative Removal Order

was issued pursuant to Section 238(b) of the INA, finding

petitioner deportable and ordering his removal to Colombia.

(Doc. No. 8, Ex. E). Forbes subsequently petitioned the

immigration court for withholding of removal under both Section

241(b)(3) of the INA and the Convention Against Torture. (Doc.

No. 8, Ex. F). By Order dated June 16, 2004, petitioner's

requests were denied. Id. On July 6, 2004, petitioner's motion

for reconsideration of the Immigration Judge's decision was

also denied. (Doc. No. 8, Ex. G). On November 12, 2004,

petitioner filed an appeal of this decision to the Board of

Immigration Appeals (“BIA”). (Doc. No. 8, Ex. H). By Order

dated January 26, 2005, the BIA dismissed petitioner's appeal

as untimely. Id. 

II. Discussion

Detention, release, and removal of aliens ordered

removed is governed by the provisions of 8 U.S.C. §1231. Under

§1231(a), the Attorney General has 90 days to remove an alien

from the United States after his order of removal, during which

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1Section 1231(a)(1)(B) provides:

The removal period begins to run on the latest of then

following:

(i) The date the order of removal

becomes administratively final.

(ii) If the removal order is

judicially reviewed and if the 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.

At the conclusion of the 90 day period,

the alien may be held in continued

detention, or may be released under

continued supervision. 8 U.S.C. §§

1231(a)(3) and (6).

4

time detention is mandatory.1 At the conclusion of the 90 day

period, the alien may be held in continued detention, or may

be released under continued supervision. 8 U.S.C. §§1231(a)(3)

& (6).

The United States Supreme Court recently addressed the

issue of whether §1231(a)(6) authorizes the Attorney General

to detain a removable alien indefinitely beyond the 90 day

removal period or only for a period reasonably necessary to

effectuate the alien’s deportation in Zadvydas vs. Davis, 533

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U.S. 678, 121 S.Ct. 2491 (2001). Reasoning that the indefinite

detention of aliens “would raise serious constitutional

concerns,” the Court concluded that the statute “limits an

alien’s post-removal-period detention to a period reasonably

necessary to bring about the alien’s removal from the United

States. It does not permit indefinite detention.” Id. at

2498. The Court asserted that “once removal is no longer

reasonably foreseeable, continued detention is no longer

authorized by statute.” Id. at 2503. To establish uniformity

in the federal courts, the Court recognized six (6) months as

a “presumptively reasonable period of detention.” Id. at 2505.

The Court further directed that if the alien provides good

reason to believe that there is no significant likelihood of

deportation in the reasonably foreseeable future at the

conclusion of the six (6) month period, the burden shifts to

the government to “respond with evidence sufficient to rebut

that showing.” Id. The Court stated that not every alien must

be released after six (6) months; but, rather, an alien may

still be detained beyond six (6) months “until it has been

determined that there is no significant likelihood of removal

in the reasonably foreseeable future.” This holding is not

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limited to only deportable aliens, but also applies to

inadmissible aliens. See Clark vs. Martinez, 2005 WL 50099

(U.S. Jan. 12, 2005)(holding that the holding in Zadvydas also

applies to aliens deemed inadmissible to the United States).

 Following the Supreme Court’s decision in Zadvydas,

regulations have been promulgated to meet the criteria

established by the Supreme Court. See 8 C.F.R. § 241.4. Prior

to the expiration of the 90 day removal period, the district

director shall conduct a custody review for an alien where the

alien’s removal, while proper, cannot be accomplished during

the prescribed period. 8 C.F.R. § 241.4(k)(1)(i). When release

is denied pending the removal, the district director may retain

responsibility for custody determinations for up to three

months or refer the alien to the HQPDU for further custody

review. 8 C.F.R. § 241.4(k)(1)(ii). Because the six month

period established by the Supreme Court has not expired and

Forbes does not contend he has been denied a hearing pursuant

to Zadvydas, petitioner's challenge to his detention is

prematurely before the Court. 

With respect to Forbes' challenge to his final order

of deportation, a review of the matters raised indicate that

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pursuant to the Real ID Act of 2005, Pub. L. No. 109-13, 119

Stat. 231, 311 (2005), petitioner's challenge to his final

order may be transferred to the appropriate United States Court

of Appeals. In pertinent part, the Act provides:

If an alien’s case, brought under section

2241 of title 28, United States Code, and

challenging a final administrative order of

removal, deportation, or exclusion, is

pending in a district court on the date of

the enactment of this division, then the

district court shall transfer the case (or

the part of the case that challenges the

order of removal, deportation, or exclusion)

to the court of appeals for the circuit in

which a petition for review could have been

properly filed under section 242(b)(2) of

the Immigration and Nationality Act (8

U.S.C. 1252), as amended by this section, or

under section 309(c)(4)(D) of the Illegal

Immigration Reform and Immigrant

Responsibility Act of 1996 (8 U.S.C. 1101

note).

119 Stat. at 311. Thus, a transfer to the appropriate United

States Court of Appeals appears to be warranted in this matter.

The United States Court of Appeals for the Third

Circuit recently issued “guidance” to the District Courts,

suggesting that the parties be afforded an opportunity to be

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The guidance further indicated that any stay of

removal or deportation should remain in effect when the case

is transferred. The Government may move in the Court of

Appeals to vacate the stay if appropriate.

heard on the issue of transfer before the District Court takes

action.2 Thus, this Court finds it necessary to afford the

parties an opportunity to be heard on the issue of transfer.

IT IS HEREBY ORDERED THAT:

1. Petitioner's challenge to his continued

detention is DISMISSED without prejudice as

premature. 

2. Within fifteen (15) days from the date of this

Order, respondent shall indicate in writing

whether the remaining challenge to petitioner's

final order of removal should be transferred to

a United States Court of Appeals. If it is

appropriate to transfer the above-captioned

matter, respondent shall identify the Court of

Appeals to which the case should be transferred.

Respondent shall also state (i) where the

Immigration Judge concluded the proceedings and

(ii) the petitioner’s Alien Number.

 s/Malcolm Muir

 

MUIR

United States District Judge

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