No. 02 C3559 Page 4

the border but had been living inside the United States prior to his detention. He appears pro
se and, accordingly, we construe his pleadings liberally. Henderson vy. Sheahan, 196 F.3d 839,
845 (7th Cir, 1999). It is difficult to determine at this stage what protections he is afforded
without filling in the history of his time in the United States. He does not appear to be either
an alien admitted legally and later excluded as in Zadvydas, or an alien “stopped at the

border,” as in Mezei. The Seventh Circuit’s decision in Hoyte-Mesa is potentially

distinguishable from the situation alleged by petitioner here, and until we know more about
the facts leading to petitioner’s detention, we do not see it as a bar to going forward.

Accordingly, we grant petitioner’s application to proceed in forma pauperis.

6

JAMES B. MORAN
nior Judge, U. S. District Court

Tene 3, 2002.


No, 02 C 3559 Page3

S.Ct. 2491 (2001). Id at 682, 2495.

An alien ordered removed who has not left or been removed within ninety days is subject
to supervision by the Attorney General. 8 U.S.C. 1231(a)(3). More relevant here, an alien
ordered removed, including aliens found inadmissable, may be detained beyond the ninety-day
removal period. 8 U.S.C. 1231(a)(6). There is no time limit specified in this detention statute.
The Supreme Court found that there is an implicit time limit in post-removal detention under
§1231(a)(6), and that once removal is no longer reasonably foreseeable, continued detention is
no longer authorized. Zadvydas, 533 U.S. at 699, 121 S.Ct. at 2503. Whether a detention
period is reasonably necessary to secure removal, and whether removal is no longer foreseeable,
are questions appropriately brought before a habeas court. Id.

The Zadvydas Court specifically noted that it was addressing the rights of aliens who
were admitted to the United States and subsequently ordered removed, in contrast to aliens
who have never entered the United States and who do not garner the constitutional
protections afforded persons inside its geographic borders. Jd. at 693, 2500, citing
Shaughnessy v. United States ex rel. Mezei, 346 U.S. 206, 73 S.Ct. 625 (1953). The Seventh
Circuit, in Hoyte-Mesa v. Ashcroft, 272 F.3d 989 (2001), addressed the issue of an alien living
in the United States who had never been granted legal entry. It found that continued
detention of an inadmissable alien did not violate due process. Jd, at 991. It also concluded
that the situation before it was outside the scope of Zadvydas not only because the petitioner
was an excludable alien, but also because he had been subject to an elaborate mandatory
administrative review process and had violated his parole conditions.

We gather from the facts presented in petitioner’s filings that he was not stopped at


t

Minate Order Form (06/97)

United States District Court, Northern District of Illinois

Namestneisetsete | James B. Moran | St Jd er

CASE NUMBER 02 C 3559 DATE 6/3/2002
CASE USA ex rel: Hussain vs. John Ashcroft etc. et al.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
Memorandum Opinion and Order
DOCKET ENTRY:
qd) im} Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer briefdue___.
(4) Oo Ruling/Hearingon___——ssetfor_— at
(5) a Status hearing[held/continued to] [set for/re-set for] on setfor_ at
(6) Qo Pretrial conference[held/continued to] [set for/re-set for] on setfor ss at_
(7) oO Trial[set for/re-set for]on__ at
(8) Q [Bench/Jury trial] [Hearing] held/continued to___at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OGeneral Rule21 CFRCP41(a)(1) CI FRCP41(a)(2).
(ao) [Other docket entry] Enter Memorandum Opinion and Order. Accordingly, we grant petitioner’s
application to proceed in forma pauperis.

al) @ [For further detail see order attached to the original minute order.]

No notices required.

Mail AO 450 form.

No notices required, advised in open court,

Notices mailed by judge's staff.
Notified counsel by telephone.

| Docketing to mail notices.

Copy to judge/magistrate judge.

WAH

umber of notices

4 2007

date docketed

JUN

LUNGS LoLsia *s'
sg sn

60°€ Wd €- NN 20

SURESH

central Clerk’s Office

courtroom date mailed notice

deputy’s
initials

mailing deputy initials



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

EASTERN DIVISION
USA ex rel. ABURWAISHED ALLA __)
HUSSAIN, ) ;
) _
Petitioner. ) angen
) EN eyed
vs. ) No. 02 C3559 ar
) x A dr
JOHN ASHCROFT, Attorney General) Jw
of the U.S., et al., )
)
Respondents, )

MEMORANDUM OPINION AND ORDER

Aburwaished Alla Hussain brings this petition for writ of habeas corpus under 28
U.S.C. § 2241. Along with his request for issuance of a writ, petitioner has filed an application
to proceed in forma pauperis. For the following reasons, petitioner’s application to proceed
in forma pauperis is granted.

Under 28 U.S.C. § 1915(a) we may authorize a petitioner to proceed in forma pauperis
if he is unable to pay the prescribed court fees. The application here indicates that petitioner
is not employed, has no source of income, has no savings, and is currently incarcerated. On
these facts petitioner has established his inability to pay the court fees.

Our inquiry does not end with a finding of indigency, however. Under § 1915 we must
conduct an initial review of petitioner’s claims and dismiss the action if we find that the action
is frivolous or malicious; it fails to state a claim on which relief may be granted; or petitioner
seeks damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-

(iii); Alston y. Debruy, 13 F.3d 1036, 1039 (7th Cir. 1994), This action does not appear to be

poeta *


No. 02 C 3559 Page 2

frivolous or malicious, and we find no immunity issues. Our only inquiry, then, is whether
petitioner has properly stated a claim. We apply the same standards as if this were an
ordinary dismissal under Fed.R.Civ.P. 12(b)(6). Zimmerman vy. Tribble, 266 F.3d 568, 571 (7th
Cir. 2000).

Petitioner alleges that he has been held in custody by the Immigration and
Naturalization Service (INS) for in excess of six months past a determination that he should
be removed from the United States. It appears that he was ordered removed when he was
found to be an “inadmissable” alien under 8 U.S.C. § 1192, having never been legally admitted
to the United States. Petitioner claims that the United States is currently unable to deport or
remove individuals to his country of origin, and there is no reasonable likelihood that he can
be removed in the foreseeable future.

Petitioner also claims that he is being held in violation of due process, He argues that
the statute under which he was detained, 8 U.S.C. 1231(a)(6), is facially unconstitutional or
alternatively unconstitutional as applied in this case. He asks for issuance of a writ requiring
that respondents show why his detention is not unlawful; for declaratory relief regarding his
detention and the statutes under which his detention began; and an order for his release.

Awrit of habeas corpus can be granted to a person who is “in custody under or by color
of the authority of the United States...or...is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2241(c)(1), (3). Petitioner alleges that he has been
ordered removed from the United States but has been held in detention for over six months by
the INS. Habeas corpus proceedings are an appropriate forum for statutory and constitutional

challenges to post-removal-period detention by the INS, Zadvydas y. Davis, 533 U.S. 678, 121