ae ~~

No. 02 C 2527 —TM rTM Page 4

We gather from the facts presented in petitioner’s filings that he was not stopped at
the border, but had been living inside the United States prior to his detention. Petitioner
appears pro se, and, accordingly, we construe his pleadings liberally. Henderson v. Sheahan,
196 F.3d 839, 845 (7th Cir. 1999). It is difficult to determine at this stage what protections
petitioner 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 up 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.

Ln B Mea

Q JAMES B, MORAN
nm

- ior Judge, U. S. District Court
Qeaal 1, 2002.



ae ~

No, 02 C 2527 “TM oN Page 3

U.S. 678, 682, 121 S.Ct. 2491, 2495 (2001).

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 inadmissible, 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 section 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 that are 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 to persons inside our geographic borders. Jd. at 693, 2500, citing

Shaughnessy y. 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 inadmissible alien did not violate due process, id. 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.


e

wen meneyoat
‘Minurs Oi gt, Fon{06/97)

2S

United st) 's District Court, Northern Distri~ f Illinois

Name of Assigned Judge James B. Moran Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 2527 DATE 4/16/2002
CASE Babatunde Lawal etc. Vs. John Ashcroft et al.
TITLE

[in the following box (a) indicate the party filing the motion, ¢g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:
Memorandum Opinion and Order
DOCKET ENTRY:
qi) ia) Filed motion of [ use listing in “Motion” box above.]
(2) ao Brief in support of motiondue__.
(3) a Answer brief to motion de___. Reply to answer brief due.
(4) o Ruling/Hearingon___setfor___—_at |
(5) oO Status hearing{held/continued to] [set for/re-set for]on__—setfor__—_at
(6) ia} Pretrial conference(held/continued to] [set for/re-set for]on______setfor__——sat__.
(7) Oo Trial[set for/re-set for]on__—___at
(8) 0 [Bench/Jury trial] [Hearing] held/continued to__at
(9) im) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) (General Rule21 OFRCP41(a)(1) 0 FRCP41(a)(2).

ao) [Other docket entry] Enter Memorandum Opinion and Order. Accordingly, we grant petitioner’s

application to proceed in forma pauperis.

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

No notices required, advised in open court.

No notices required.
a number of notices:

Notices mailed by judge's staff. i APR 4 4 2002

Notified counsel by telephone. date docketed

vo | Docketing to mail notices.

Mail AO 450 form.

docklging depart initials

Copy to judge/magistrate judge.

courtroom
WAH deputy’s
initials

Coe

Dateltime received in
central Clerk’s Office

mailing deputy initials



> ~

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

EASTERN DIVISION
BABATUNDE LAWAL, a/k/a ABDUL)
R. LAWAL, )
Petitioner }
vs. } No. 02 C 2527
JOHN ASHCROFT, et al., }
Respondent. }

MEMORANDUM OPINION AND ORDER

Petitioner Babatunde Lawal 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 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 section 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 respondent who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B)(i)-(iii); Alston v. Debruy, 13 F.3d 1036, 1039 (7th Cir. 1994), This action does not
appear to be frivolous or malicious, and we see no immunity issues. Our only inquiry, then,

is whether petitioner has properly stated a claim. We apply the same standards as if this were


aw * “~

No. 02 C 2527 “TM oTM Page 2

an ordinary dismissal under Fed.R.Civ.P. 12(b)(6). Zimmerman vy. Tribble, 266 F.3d 568, 571
(7th Cir. 2000).

Petitioner brings this action under 28 U.S.C. § 2241 as a petition for a writ of habeas
corpus. He alleges that he has been held in custody by the Immigration and Naturalization
Service (INS) 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 claims that he is being held in violation of due process. He additionally
argues that the statute under which he was detained, 8 U.S. C. 1231(a)(6), is facially
unconstitutionally or alternatively unconstitutional as applied in this case. Petitioner asks for
issuance of a writ requiring the respondents to show why his detention is not unlawful,
declaratory relief regarding his detention and the statutes under which his detention began,
and an order for his release.

A writ 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 by the INS for
over six months. Habeas corpus proceedings are an appropriate forum for statutory and

constitutional challenges to post-removal-period detention by the INS, Zadvydas v. Davis, 533