Supreme Court decision of Zadvydas v. Davis, 533 U.S, 678 (2001), and contrary to the Constitution
of the United States, Respondents argue that Petitioner’s detention is in accordance with regulations
promulgated by the Attormey General found at 8 C.F.R. § 241.137 and permissible under Zadvydas

because there is a significant likclihood of repatriation.

Il. Legal Standard

A. Availability of Judicial Review

This case is before us on Petitioner’s writ of habeas corpus pursuant to 28 U.S.C. §
(“section”) 2241. “The purpose of a writ under this section is to provide a remedy to those
individuals who are detained contrary to the constitution or laws of the United States.” Kacanic v.
Elwood, et al.,2002 WL 31520362, at *2 (E.D. Pa. Nov. 8, 2002) (citing Johnson v. Avery, 393 U.S.
483, 485-86 (1969)). Congress has recently made significant changes to immigration law, limiting
judicial review of certain deportation decisions. [lowever, section 2241 habeas corpus proccedings
remain available to alicns such as Petitioner secking to challenge the post-removal-period of

detention. Zadvydas, 533 U.S, at 687-88.

7 8C.F.R. § 241.13 establishes review procedures to determine whether there is a significant
likelihood of an alien’s removal from the country in the reasonably foreseeable future. The section
also provides for supervised release of aliens in certain cases pending deportation. To be released
under supervision, an alicn must cooperate in the process of obtaining his own travel documents.
See 8 CER. § 241.13(d)(2). Respondents claim Petitioner has not satisfied the requirements of this
section because he has not assisted “in obtaining evidence relating to his citizenship”, has not
requested a travel document himself and has “not been forthcoming with information that could
expedite his repatriation.” (Resp. Briel at 9-10.)

4.



cooperation. Petitioner has obtained a birth certificate from the United Nations Interim
Administrative Mission in Kosovo. (Pet’r. Ex. 1.) Petitioner has recently tried to obtain information
about a travel document from the Embassy. (Pet’r. ix. 5.) He has completed two INS Inquiry Forms
seeking information from the INS about the status of"his deportation. (Pet’r. Exs. 3 & 4.) There is
no evidence that the INS responded to his inquiries. ‘lhe only evidence submitted by Respondents
relating to Petitioncr’s failure to cooperate is the HOPDU Decision to Continue Detention letter, a
form letter which stated very gencrally that Petitioner was required to provide evidence of his
citizenship and request a travel document on his behalf. (Resp. Ex. 4.), Moreover, as we have
already slated, we are not obligated to defer to the INS’s custody decision in this case. See
Zadvydas, 533 U.S, at 699 (28 U.S.C, § 2241 grants federal courts the authority to determine whether
detention is “within, or beyond, a period reasonably necessary to secure removal”).

Respondents have also tried to present evidence that demonstrates a likelihood of Petitioner’ s
removal in the reasonably foreseeable future, as Zadvydas requires. Zadvydas, 533 U.S. at 701. We
find they have not succeeded. Respondents say the “INS has made efforts, and continues to make
efforts with the Yugoslavian cmbassy” to sceure a travel document for Petilioner. (Resp. Brief at
10.) But the INS has been trying to obtain a travel document since October 2001 with no luck to
date.

We note initially that we lack evidence demonstrating the INS’s “continuing” efforts to

obtain the necessary document. There is evidence of communications between the INS and the

-9-



241). Respondents argue that we should defer to the INS’s custody determinations in these cases,
only assessing “whether the basis for the [INS] decision was ‘facially legitimate and bona tide,’ as
opposed to “wholly irrational.” (Resp. Brief at 8.) Respondents argue for other levels of deference
in the alternative.

The Supreme Court’s decision, however, does not contemplate that we defer to the INS’s
custody determination. “The basic federal habeas corpus statute grants the federal courts the
authority to [determine whether a set of particular circumstances amount to detention within, or
beyond, a period reasonably necessary to secure removal].” Zadvydas, 533 U.S. at 699, The habeas
court

must ask whether the detention in question exceeds a period reasonably
necessary to secure removal. It should measure reasonableness primarily
in terms of the statute’s basic purpose, namely, assuring the alicn’s
presence at the moment of removal. Thus, if removal is not reasonably
foreseeable, the court should hold continued detention unreasonable and
no longer authorized by statute... . And if removal is rcasonably
foreseeable, the habeas court should consider the risk of the alien’s
committing further crimes as a factor potentially justifying confinement
within that reasonable removal period.
Id.

The Supreme Court established a framework to guide a habeas court’s decision about
whether a period of post-final-order detention longer than six months is permitled. First, the alien
must provide “good reason to believe that there is no significant likelihood of removal in the
reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. If the alien succeeds, then “the

Government must respond with evidence sufficient to rebut that showing.” /d If a habcas court

determines that removal is not “reasonably foresecable”, then it should order the alien released from

-6-



B. The Zadvydas Decision

In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court held that § U.S.C. §
1231(a)(6) did not permit the indefinite detention of lawfully admitted, but subsequently ordered
removed, aliens during the post-removal period (i.c., the time after the 90-day statutory removal
period) while they awaited deportation. Zadvydas, 533 US. al 682.

The Court recognized that the statute’s basic purpose was to assure an alien’s presence at the
time of his removal. Jd. at 699, But the Due Process Clause of the U.S. Constitution applies to
alicns who have entered the country, said the Court and “a statute permitting indefinite detention of
an alien would raise a serious constitutional problem.” Zadvydas, 533 U.S. at 690. Interpreting the
statute in order to “avoid a serious constitutional threat,” the Court concluded that “once removal
is no longer reasonably foreseeable, continued detention is no longer authorized by statute.” Jd. The
Court, recognizing the expertise of the Executive Branch in immigration matters and seeking to limit
the occasions when courts would need to make difficult foreign policy judgments, read into the
statute a presumptively reasonable limit on the period of post-final-order detention - six months.
See id, al 701, The Courl noted, however, that not every alien should be released after the expiration

of the six-month period, S¢e id “[A]n alien may be held in confinement until it has been
determined that there is no significant likelihood of removal in the reasonably foresccable future.”
Ia.

In response to the Zadvydas decision, the Attorney General has promulgated regulations
governing custody review of aliens who have remained in detention beyond the six-month

presumptively reasonable post-linal-order period. See Continued Detention of Aliens Subject to

Final Orders of Removal, 66 Fed. Reg. 56967 (Nov. 14, 2001) (now codified at 8 C.F.R. Pts. 3 &

5.



... the Embassy has the honor to inform you that according to the

response of the Yugoslav authorities neither the identity nor the

Yugoslav citizenship of Mr. Shefqet Breznica was established. Due to

that fact the Embassy of the Federal Republic of Yugoslavia in

Washington, D.C. cannot issue a travel document for Mr, Shefget

Breznica.
(Pet’r. Ex. 6.) In January 2003, Petitioner faxed a letter to the Embassy, explaining thal he was an
Albanian from Kosovo, that he had a Yugoslavian passport when he came to the United States in
1989, and that the INS was trying to deport him back to Yugoslavia but could not because he lacked
a travel document from the Embassy. (Pet’r. Ex. 5.) He requested that the Embassy provide some
information about his situation. We have no evidence that indicates a response has been received
from the Embassy or that the Embassy’s position about issuing a travel document has changed.

‘The period of Petitioner’s post-final-order detention has at this time exceeded seventeen

months and so the “reasonably foreseeable future” must now come very quickly. See Zhou v.
Farquharson, 2001 U.S. Dist. Lexis 18239, at *3-4 (D. Mass. Oct. 19, 2001) (granting habeas rele’
when post-final-order detention period was 13 months). Petitioner has submitted evidence indicating
the Fmbassy will not issue him a travel document. We find that he has shown no significant

likelihood of removal in the reasonably foreseeable future. It is now incumbent on Respondents to

rebut Petitioner’s showing. See Zadvydas, 533 U.S. at 701.

B. The INS Response
Respondents first make the argument that Petitioncr has not cooperated with the INS to effect
his deportation and that his lack of cooperation justifics his continued detention. We find this

argument unconvincing, Respondents have not detailed specific occasions of Petitioner's lack of

8.



© Mimute Qraér Form (06/9)

United States District Court, Northern District of Ilinois

Name of Assigned Judge Paul LE. Plunkett Sitting Judge if Other
or Magistrute Judge than Assigned Judge
CASE NUMBER 02 C 7737 DATE 4/25/2003
CASE Breznica Shefqet vs. John Ashcroft, et al
TITLE

(In the following box (a) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

(e3) o Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) Oo Answer briefto motiondue____. Reply to answer briefdue___

(4) oO Ruling/Hearingon__ssetfor_— at

(3) Qa Status hearing[held/continued to] [set for/re-set for]on__—sset for_— att

(6) Qo Pretrial conference[held/continued to] [set for/re-set for]on__—sset for at_
(ea) o Trial[sct for/re-set for]on at

(8) oO {Bench/Jury trial] [Ilearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

Oercp4(m) OLocal Rule 41.1 OFRCP41(a\(1) 0 FRCP4I(a)(2).

(10) MM [Other docket entry] ~ENTER MEMORANDUM OPINION AND ORDER: Petitioner has shown
there is no significant likelihood of his removal in the reasonably foreseeable future. Respondents have
thirty days to remove Petitioner from the country. If Respondents cannot remove Petitioner within thirty
days, Petitioner’s writ of habeas corpus will issuc and Petiioncr shall be released on conditions suitable
to the INS, which may include those set forth in 8 C.F.R. Section 24.5.

(1) (For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. .
suniber of noticus

Notices muiled by judge's stuff. a

; APR !
Notified counsel hy telephone, foc
V’_ | Docketing to mail natices, lune a \¢
Mail AO 450 form. ’ docketinf depty ine

Copy to judge/inagisteate judge.

Vale mailed nvtice
courtroom

TAK deputy's
initials

Date/time received in -
central Clerk’s Office roaling deputy intial



But this number standing alone carries no weight. We do not know how many aliens were denied
travel documents by the Embassy, or how many of the seventy-eight aliens who were successfully
temoved had criminal histories or lacked a Yugoslavian passport. See Kacanic, 2002 WL3 1520362,
at *4 (rejecting INS information about the number of alicns removed to Yugoslavia because it
provided no information specific to the petitioner’s case), We do not have enough information to
make a meaningful determination about whether or not Petitioner will be removed in the reasonably
foreseeable future. Jd. (citing cases which find that evidence about other aliens having been deported
to a habeas petitioner’s country does not carry the government’s burden under Zacdvydas),

Looked at another way, the INS’s apparent success in removing seventy-eight aliens to
Yugoslavia speaks to the likelihood, or rather the lack thereof, of removing Petitioner in the
reasonably foreseeable future. If the INS was able to remove this many aliens in one year, this fact
may underscore the problems it is having in removing Petitioner, particularly since Petitioner has
been in INS custody since October 2001 and his travel document has been “requested” from the
Embassy and “pending” since at least April 2002, as the INS assured him. (Resp. Ex. 4.) See
Seretse-Khama v. Ashcrofi,215 F. Supp. 2d 37, 50 (D.D.C. 2002). We think ample time has passed
in order for the INS to obtain a travel document that has been “pending” now for at least one year.
See id, at 48 (finding that an INS claim made nine months earlier that a travel document was
“pending” was (alse).

Petitioner need not make a showing that removal is impossible. See Zadvydas, 533 U.S. at
702 (rejecting this requirement of the Fifth Circuit Zadvydas court). Although some possibility of
removal may exist, Petitioner's period of post-final-order detention has been sufficiently long such

that a remote, non-specific possibility does not satisfy Respondents’ burden. See Mohamed v.

-11-



Embassy in October 2001* and in January 2003’, (Pet’r. Ex. 6, Resp. Ex. 5), but no evidence of
specific communications in the interim. See Kacanic, 2002 WL 31520362, at *5 (INS failure to
make timely efforts to remove petitioner onc factor of court’s finding that petitioner’s removal not
likely in the reasonably foreseeable futurc). Even if the INS has been making regular efforts to
secure Petitioner’s travel document since October 2001, at this time there must be some concrete
evidence of progress. The INS cannot rely on good faith efforts alone. See Zadvydas, 533 U.S. at
702 (rejecting the Fifth Circuit Zadvydas court’s holding that detention was lawful as long as
government made “good faith efforts to effectuate . . . deportation” and alien failed to show
deportation was impossible) (internal quotations omitted). Respondents have not told us what was
learned in January 2003 about the status of the travel document, such as the reasons for the delay,
the assurances from the Embassy that the document is forthcoming, or even whether the limbassy
is willing io issue the document to Petitioner at all. See Thompson v, INS, 2002 U.S. Dist. Lexis
23936, at *16 (E.D. La. Sept. 13, 2002) (government failed to meet burden that removal was in
reasonably foreseeable future in part because no evidence was presented that government of Guyana
responded to a request for travel documents).

The only affirmative representation made by the INS about the likelihood of Petitioner's
removal in the reasonably foreseeable future is the IQPDU’s statement in its Decision to Continue

Detention that 78 Yugoslavian nationals have becn removed during fiscal year 2001. (Resp. Ex. 4.)

* ‘The February 2002 letter from the Embassy to Fasterday was apparently in response to an
October 2001 letter from Easterday to the Embassy requesting a travel document for Petitioner.
(Pet’r, Ex. 6.)

° In mid-January 2003, Kevin McDonald, INS Supervisory Deportation Officer, met with
representatives from the Embassy to discuss Petitioner’s case, among others. McDonald senta letter
to the Embassy on January 31, 2003 as a follow up to that meeting. (Resp. Ex. 5.)

~10«



custody, subject to conditions of supervised release “appropriate in the circumstances.” /d, at 699-700,
Petitioncr’s period of detention pending removal has exceeded the presumptively reasonable

six months, and so we apply the Zadvydas framework to his case.

Hil. Application of Zadvydas
A. Petitioner's Showing

We find that Petitioner has shown good rcason to believe that there is no significant
likelihood he will be removed in the reasonably foreseeable future. In reaching this conclusion, we
rely on the amount of time that Petitioner has already spent in custody and the Embassy’s February
2002 statement that it will not issue a travel document to Petitioner. See Kacanic, 2002 WL
31520362, at *3 (court relied on time spent in custody, inaction of Yugoslavian Embassy and INS
admissions).

As stated above, Petitioner’s removal period began on October 1, 2001. His ninety-day
removal period expired on December 30, 2001 and the six-month presumptively reasonable period
provided for in Zadvydas expired at the end of March 2002. At the time he filed his habcas petition,
Petitioner had already spent one year awaiting his removal, double the amount of time the Supreme
Court considered presumptively reasonable, The Supreme Court did not articulate a maximum time
limit for post-final-order detention, but it did say that “as the period of prior postremoval
confinement grows, what counts as the ‘rcasonably foreseeable future’ conversely would have to
shrink.” Zadvydas, 533 U.S. at 701.

The Embassy has indicated that it will not issue a travel document to Petitioner. A Ictter,

dated February 2, 2002, from the Embassy to Mr, Ronald P. Easterday at the INS in Chicago states:

-7-



ff an alien is not removed during the ninety-day removal period, the Attorney General is
permitted to detain him beyond this period. 8 U.S.C. § 1231(a\(6). The statute, applicable to
Petitioner, reads:
An alien ordered removed who is . . . removable under section
1227(a)(2).. . of this title or who has been determined by ihe Attomey
General to be a risk to the community or unlikely to comply with the
order of removal, may be detained beyond the removal period and, if
teleased, shall be subject to [certain] terms of supervision .. . ,
Td, The statute does not provide for a maximum period of post-final-order detention.
The INS has conducted “post-order custody review” of Petitioner’s case. On I’cbruary 21,
2002, the District Director of the INS issued a Decision to Continue Detention, which stated that
Petitioner was not being released because he had not demonstrated that he was no longer a threat to
society and because his only potential sponsors lived in Michigan. (Resp. Ex. 3.) The case was then
referred to the INS Headquarters Post-Order Detention Unit (the “HQPDU”) for further review. On
April 27, 2002, the Director of the IIQPDU issued a Decision to Continue Detention, which stated:
. it is the experience of the INS that it is able to carry out removals of
Yugoslavian nationals. In fiscal year 2001, the INS successfully repatriated 78
Yugoslavian nationals. You have not provided any evidence to show that your
casc is an exception. A travel document has been requested from the
Yugoslavian Government and is currently pending. Therefore, itis expected that
your removal from the United States is feasible and will occur in the foreseeable
future. You are required to assist the INS in its efforts to remove you by
providing evidence of your citizenship and requesting a travel document on your
own behalf... .
(Resp. Ex 4.) The INS conducted another custody review of Petitioner’s case in March 2003.
Petitioner remains in INS custody.

Petitioner asserts that there is no likelihood of his removal from the United States in the

reasonably foreseeable future and that his continued detention by the INS is contrary to the recent

3-



numerous state criminal law violations in the circuit court of Mlinois?, (Resp. Ex. 2.) Pursuant to
section 237(a)(2)(A)(iii) of the Immigration and Nationality Act’, the Immigration and Naturalization
Service (the “INS”) initiated removal proceedings against Petitioner. (/d.) On December 14, 1999,
an immigration judge ordered Petitioner removed from the United States to Yugoslavia. (Resp. Ex.
1,) Petitioner was in the custody of the Minois Department of Corrections until October 1, 2001, at
which time he came into the custody of the INS. (Pet'r. Exs. 3 & 4.)° Since then, he has been
detained by the INS subject to a final order of removal. Petitioner cannot be removed from the
country until he receives the necessary travel documents® from the Yugoslavian Embassy (the
“Embassy”).

U.S. immigration laws permit the INS to detain aliens following a final order of deportation.
See 8 U.S.C. § 1231 (West 2002). Sections 1231(a)(1) and (2) of 8 U.S.C. provide that the United
States Attorney General shall remove and detain an alicn within the “removal period”, which is
generally ninety days. ‘The beginning date of a removal period can vary; in Petitioner's casc, his
removal period began on October 1, 2001, the date he was released from the Illinois Department of
Corrections. See 8 U.S.C. § 1231(a)(1)(B)(iii). Rough calculations tell us his ninety-day removal

period ended at the end of December 2001,

> Petitioner has been convicted three times of burglary, twice of possession of burglary tools
and once of resisting a peace officer. (Resp. Ex. 2.)

* Codified at 8 U.S.C. § 1227(a)(2)(A)Gii), this section provides for the deportation of an
alien who is convicted of an aggravated felony at any time after admission.

> Petitioner did not number the exhibits to his petition. We have numbered them in the order
in which they were attached to his reply brief.

© When Petitioner entered the United States in 1989, he hada Yugoslavian passport. (Pet’r.
Ex. 5.) He no longer has such a passport. (7d)

-2-



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
BREZNICA SHEFQET )
)
Petitioner, )
)
v. ) No. 02 C 7737
y Paul E. Plunkett, Senior Judge
JOHN ASHCROFT, ET AL., )
)
Respondents. ) Y
, O75
? Pty
2 i)
& 9 ae
MEMORANDUM OPINION AND ORDER “Sp,

Breznica Shefget! (“Petitioner”) has filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Petitioner has been ordered deported from the United States and is
being detained pending his removal. He claims that his continued detention pending removal from
the country is contrary to the laws of the United States. For the following reasons, the petition will

be granted if Respondents fail to remove Petitioner from the country within thirty (30) days.

1. Background
Petitioner, anative of Yugoslavia’, entered (he United States without inspection in 1989. His

status was adjusted to that of an asylee on April 6, 1993. Since 1993, he has been convicted of

' Petitioner’s name has appeared on various documents as both “Shefget Breznica” and
“Breznica Shefget”. To avoid confusion, we will refer to him as Petitioner.

> Petitioner asserts he is an Albanian from Kosovo. »)



Ashcroft, 2002 U.S. Dist. Lexis 16179, at *3 (W.D. Wash. Apr. 15, 2002) (adopting magistrate
judge’s finding that government did not meet Zadvydas burden because it provided no information

regarding how or when it expected to obtain documents or cooperation from forcign government).

III. Conclusion
Petitioner has shown there is no significant likelihood of his removal in the reasonably
foreseeable future, Respondents have thirty days to remove Petitioner from the country. If
Respondents cannot remove Petitioner within thirty days, Petitioner’s writ of habcas corpus will

issue and Petitioner shall be released on conditions suitable to the INS, which may include those set

forth in 8 C.P.R. § 241.5.

ENTER:

UNITED STATES DISTRICT JUDGE