IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

TUNKARA YAHYA, 

 Case No. 2:17-cv-1021; 17-cv-1073 

 Petitioner, Judge Algenon L. Marbley 

 Magistrate Judge Chelsey M. Vascura 

 v. 

ATTORNEY GENERAL, et. al, 

 Respondents. 

REPORT AND RECOMMENDATION 

 Petitioner, a citizen of Gambia, has filed this Petition for a writ of habeas corpus pursuant 

to 28 U.S.C. § 2241 seeking immediate release from the custody of Immigration and Customs 

Enforcement (“ICE”). This matter is before the Court on the Petition, Respondent’s Motion to 

Dismiss and Return in Opposition, Petitioner’s Response and Supplemental Memorandum 

Opposing the Motion to Dismiss and Return in Opposition, and Respondent’s Supplemental 

Memorandum Supporting the Motion to Dismiss and Return in Opposition. For the reasons that 

follow, it is RECOMMENDED that this action be DISMISSED and that Petitioner’s Motion 

for an Immediate Stay of Removal (ECF No. 2) be DENIED. 

Facts and Procedural History 

Petitioner is a citizen of Gambia. Petitioner indicates that he has been in the custody of 

United States Immigration and Customs Enforcement (“ICE”) since on August 27, 2016, where 

he has remained since that time. On March 24, 2017, Petitioner was ordered to be removed from 

the United States to Gambia. (Petition, ECF No. 1, PAGEID # 3; ECF No. 7-3, PAGEID # 43.) 

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Petitioner did not appeal the order of removal. He asserts that his continued detention violates 

Zadvydas v. Davis, 533 U.S. 678 (2001), and Clark v. Martinez, 543 U.S. 371 (2005), because 

there is no significant likelihood of his removal from the United States in the reasonably 

foreseeable future. It is the position of the Respondent that this action should be dismissed. 

 In response, Respondent has submitted the Declaration of deportation officer Kenneth 

Williams, indicating that Petitioner has been in the custody of ICE since August 31, 2016, when 

he entered the United States without proper documentation to permit lawful entry. (ECF No. 7-

1, PAGEID # 38-39.) On March 24, 2017, the Immigration Court issued Petitioner’s Order of 

removal. (ECF No. 7-3, PAGEID # 43.) On April 10, 2017, federal officials submitted a travel 

document request to the Gambian embassy. (ECF No. 7-1, PAGEID # 39.) On July 11, 2017, 

Petitioner advised the Gambian embassy that he was born in Sierra Leone. (Id.) This 

information contradicts Petitioner’s August 29, 2016 sworn statement to the Department of 

Homeland Security indicating that he was born in Allunharen, Gambia. (ECF No. 7-4, PAGEID 

# 46.) ICE, however, provided information regarding Petitioner’s Gambian passport, including 

the passport number and expiration date, to the Gambian embassy for issuance of travel 

documents. (ECF No. 7-1, PAGEID # 39.) 

Respondent also has submitted the Declaration of deportation officer Timothy Hinman, 

indicating that, on May 16, 2018, Gambia issued Petitioner emergency travel documents for his 

removal from the United States. (ECF No. 14-1, PAGEID # 76.) A copy of the Emergency 

Travel Document is also attached. (PAGEID # 78.) According to Hinman, Petitioner’s removal 

travel is currently being arranged, and it is significantly likely that he will be removed from the 

United States in the reasonably foreseeable future. (ECF No. 14-1, PAGEID # 76.) 

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Law 

Pursuant to 28 U.S.C. § 2241(a) a writ “of habeas corpus may be granted by the Supreme 

Court, any justice thereof, the district courts and any circuit judge within their respective 

jurisdictions.” “Section 2241 affirmatively grants federal courts the power to issue writs of 

habeas corpus to prisoners being held ‘in violation of the Constitution or laws or treaties of the 

United States.’” Rice v. White, 660 F.3d 242, 249 (6th Cir. 2011) (quoting § 2241(c)). The 

United States Supreme Court has affirmed the jurisdiction of courts to consider habeas claims 

arising out of immigration detention. See Ly v. Hansen, 351 F.3d 263, 266 (6th Cir. 2003) 

(citing Zadvydas, 533 U.S. at 688). “Despite statutory restriction of court review regarding many 

immigration matters, a petition for writ of habeas corpus under section 2241 is appropriate for 

raising statutory and constitutional challenges to post-removal detention by the ICE.” Estenor v.

Holder, No. 1:11-cv-743, 2011 WL 5572596, at *2 (W.D. Mich. Oct. 24, 2011) (citing 

Zadvydas, 533 U.S. at 688; Ly, 351 F.3d at 266). See also Jiang Lu v. U.S. ICE, 22 F.Supp.3d 

839, 841 (N.D. Ohio 2014) (“Federal courts have habeas jurisdiction to examine the statutory 

and constitutional bases for an immigration detention unrelated to a final order of removal.” 

(citing Demore v. Kim, 538 U.S. 510, 517–18 (2003))). 

Once an order of removal becomes administratively final, the Attorney General “shall 

detain” and remove the alien within ninety days. Mulla v. Adducci, 178 F.Supp.3d 573, 575 

(E.D. Mich. 2016) (citing 8 U.S.C. § 1231(a)(1)(A), (a)(2)). However, the government may 

detain an inadmissible or criminal alien beyond the ninety-day statutory removal period. See id; 

8 U.S.C. § 1231(a)(6); Jiang Lu, 22 F.Supp.3d at 841. In Zadvydas, the Supreme Court 

interpreted this provision to authorize the continued detention of the alien only as long as 

“reasonably necessary” to effectuate the alien’s removal. Jiang Lu, 22 F.Supp.3d at 842 (citing 

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Zadvydas, 533 U.S. at 689, 699; Clark, 543 U.S. at 373). The detention of an alien subject to 

removal due to a criminal conviction will be presumptively reasonable for up to six months. 

Mulla, 178 F.Supp.3d at 576 (citing Zadvydas, 533 U.S. at 701). “After this 6–month period, 

once the alien provides good reason to believe that there is no significant likelihood of removal 

in the reasonably foreseeable future, the Government must respond with evidence sufficient to 

rebut that showing.” Zadvydas, 533 U.S. at 701. “Once removal is no longer reasonably 

foreseeable, continued detention is no longer authorized by statute.” Id. at 699. “[T]he Supreme 

Court has clarified that the Zadvydas due process analysis applies only if a danger of indefinite 

detention exists and there is no significant likelihood of removal in the reasonably foreseeable 

future.” Jian Lu, 22 F.Sup.3d at 843 (citing Demore v. Kim, 538 U.S. 510, 531 (2003)). “Merely 

alleging that a date for travel has not yet been set, is insufficient to demonstrate indefinite 

detention.” Id. Further, “courts have uniformly refused to find a constitutional violation and/or 

have concluded that the removal period is tolled or suspended by an alien’s refusal to cooperate 

or conduct which prevents or thwarts his removal from the United States. See Mohamed v. U.S. 

Attorney Gen., No. 1:17-cv-573, 2018 WL 1904293, at *4 (S.D. Ohio Mar. 8, 2018) (citations 

omitted). In Clark v. Martinez, 543 U.S. 371 (2005), Zadvydas was extended to apply to 

inadmissible aliens. See Joseph v. Holder, No. 11-11118, 2011 WL 2893070, at *2 (E.D. Mich. 

July 20, 2011). 

Applied here, Petitioner has failed to provide “good reason to believe that there is no 

significant likelihood of removal in the reasonably foreseeable future,” Zadvydas, 533 U.S. at 

701, such that his continued detention violates the Constitution or laws of the United States. 

Moreover, the information Respondent submitted to the Court reflects that Petitioner’s removal 

is significantly likely to occur in the immediate and foreseeable future. In particular, the United 

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States has obtained Petitioner’s emergency travel document from Gambia for the purpose of 

Petitioner’s removal from the United States, and the record reflects that petitioner’s removal 

travel is currently being arranged. The undersigned therefore concludes that Plaintiff has not 

demonstrated his entitlement to habeas corpus relief under 28 U.S.C. § 2241 and therefore 

RECOMMENDS that this action be DISMISSED. 

 Respondent asserts that the Court should dismiss this action under Rule 12(b)(1) of the 

Federal Rules of Civil Procedure as moot because there remains no relief available to the 

Petitioner short of his escort onto a plane. (See Supp. Mem. Supporting Mot. to Dismiss, ECF 

No. 14, PAGEID # 74.) A § 2241 petition is subject to dismissal for lack of subject matter 

jurisdiction as moot, where a habeas petitioner who challenges his continued allegedly illegal 

detention under Zadvydas is deported during the pendency of proceedings, because there no 

longer exists an actual case or controversy under Article III, § 2 of the Constitution. See Conteh 

v. United States Attorney Gen., No. 2:17-cv-0958, 2018 WL 1587452, at *1-2 (S.D. Ohio Apr. 2, 

2018) (citing Zundel v. Berrong, 106 F. App’x 331, 334-35 (6th Cir. 2004) (citing Spencer v. 

Kemna, 523 U.S. at 7) (other citations omitted). Here, however, the record does not reflect that 

Petitioner has been removed from the United States. To the contrary, as of June 14, 2018, 

Petitioner complained that he remained illegally incarcerated at the Morrow County Jail. (ECF 

No. 16.) The undersigned acknowledges, however, that this Court lacks the authority to stay 

deportation proceedings in the context of a habeas corpus petition. See Adames v. Hinton, No. 

2:16-cv-00963, 2016 WL 7386348, at *3 (S.D. Ohio Dec. 21, 2016) (citing Elcheikhali v. 

Holder, No. 4:10-cv-2333, 2010 WL 4818390, at *2 (N.D. Ohio Nov. 22, 2010) (the REAL ID 

Act stripped this Court of its jurisdiction to issue such a stay, as well as the Petitioner’s right to 

receive one from this Court) (citing 8 U.S.C. § 1252(a)(2)(C))). It is therefore 

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RECOMMENDED that Petitioner’s Motion for an Immediate Stay of Removal (ECF No. 2) be 

DENIED. 

Recommended Disposition 

For the foregoing reasons, it is RECOMMENDED that this action be DISMISSED and 

that Petitioner’s Motion for Motion for an Immediate Stay of Removal (ECF No. 2) be 

DENIED. 

Procedure on Objections 

If any party objects to this Report and Recommendation, that party may, within fourteen 

days of the date of this Report, file and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, together with supporting 

authority for the objection(s). A judge of this Court shall make a de novo determination of those 

portions of the report or specified proposed findings or recommendations to which objection is 

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or 

in part, the findings or recommendations made herein, may receive further evidence or may 

recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(B)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

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The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue. 

 /s/ Chelsey M. Vascura___ 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE 

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