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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DWIGHT DENNIS,

Agency No.: A-079444966,

Petitioner,

vs. Case No. 4:10cv445-SPM/WCS

ERIC H. HOLDER, JR., et al.,

Respondents.

 /

REPORT AND RECOMMENDATION

Petitioner, who is pro se, initiated this case by filing a petition for writ of habeas

corpus under 28 U.S.C. § 2241 on October 15, 2010. Doc. 1. Service was directed and

Respondents filed a response to the petition for writ of habeas corpus on March 31,

2011. Doc. 13. Since that time, Petitioner has been provided several opportunities to

file a reply, and Petitioner was specifically directed to provide clarification as to several

issues raised in the response. Docs. 15, 17, 19, and 21. Despite these opportunities,

Petitioner has failed to provide a meaningful reply and has not complied with court

orders. 

Petitioner is currently located at Krome S.P.C.. Docs. 20, 24. Petitioner's

subsequent transfer does not render this petition moot. The simple and consistently

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applied rule in these cases is that "[w]henever a § 2241 habeas petitioner seeks to

challenge his present physical custody within the United States, he should name his

warden as respondent and file the petition in the district of confinement." Rumsfeld v.

Padilla, 542 U.S. 426, 447, 124 S.Ct. 2711, 2724, 159 L.Ed.2d 513 (2004); see also

Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 494-495, 93 S.Ct. 1123, 35

L.Ed.2d 443 (1973). Being moved after filing a petition will not effect the court's

jurisdiction, as jurisdiction attaches upon the initial filing of the § 2241 petition, and will

not be destroyed by Petitioner's subsequent Government-effectuated transfer and

accompanying change in physical custodian. Padilla, 542 U.S. at 440-41, 124 S.Ct. at

2721; see e.g., Mujahid v. Daniels, 413 F.3d 991, 994 (9th Cir. 2005), quoting in Francis

v. Rison, 894 F.2d 353, 354 (9th Cir. 1990). Considering the opportunities provided to

Petitioner for filing a reply to the Government's response, no further delay is necessary

and it is time to rule on the merits of the petition. 

Allegations of the petition, doc. 1

Petitioner alleges that as of October, 2010, he had been in detention for seven

months awaiting removal. Doc. 1, p. 1. Petitioner was ordered removed in October of

2002, and stated that he entered immigration custody on February 5, 2010. Id.

Petitioner alleges that he was born in St. Thomas, U.S. Virgin Islands, and has been

living in the United States since October of 1975. Id., at 3. 

Petitioner failed to assert in the petition the name of the country to which he was

ordered removed. Doc. 1, p. 1. Furthermore, Petitioner did not name a country that

had refused to issue travel documents for his removal. Id. Moreover, the petition

contains no allegations explaining any effort on Petitioner's part to facilitate his removal. 

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Id., at 4-5. Petitioner did allege that he did "not challenge the validity of the removal

order against him." Id., at 2. Petitioner only sought release from his ongoing detention

under Zadvydas, infra, and claimed Respondents "refuse to release him even though

they are unable to deport him and will be unable to deport him in the reasonably

foreseeable future." Id. 

Answer, doc. 13

During Petitioner's initial interview with immigration officials on July 30, 2002,

Petitioner "presented what was later found to be a fraudulent U.S. Virgin Islands birth

certificate, social security number, and a driver's license, claiming to be a United States

citizen." Doc. 13, p. 2 (Ex. A).1 The Virgin Islands' Bureau of Vital Statistics certified on

August 5, 2002, that the purported birth certificate submitted by Petitioner was invalid. 

Id. The Social Security Administration also certified that the social security number

Petitioner submitted was invalid. Id. The Forensic Document Lab of Immigration and

Customs Enforcement (hereinafter "ICE") conducted an investigation into the

documents presented by Petitioner and determined they were fraudulent. Id. 

Removal proceedings were commenced against Petitioner alleging that Petitioner

"was a native and citizen of Jamaica, who had entered the United States without being

admitted or inspected by Immigration Officials. Doc. 13-1, p. 1. On October 25, 2002, a

final order of removal was issued by an Immigration Judge in Miami, Florida. Doc. 13,

p. 2. The Immigration Judge heard argument as to Petitioner's citizenship claims, but

determined that Petitioner was not a citizen of the United States. Id., at 2-3. 

 1 The statement of facts in the Answer is taken from the Declaration of Deportation

Officer Deborah Pasterak, attached to the Answer as Exhibit A. On the Court's

electronic docket, it is document 13-1.

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Petitioner's appeal to the Board of Immigration Appeals was dismissed on March 6,

2003. Id., at 3.

Based on the final order of removal, "ICE presented a travel document package

to the Jamaican Consulate, which confirmed" that Petitioner was a Jamaican citizen and

issued a travel document for him. Doc. 13-1. ICE then attempted to remove Petitioner

on a flight to Jamaica on January 18, 2005, but Petitioner returned to the United States

on January 19th, the day after his attempted removal. Id. During questioning,

Petitioner said that he told the Jamaican authorities at the airport that he was a United

States citizen. Id. Based on his claim, Jamaican authorities refused to accept

Petitioner for entry into their country. Id. 

Petitioner reported to the Tampa ICE office on a regular basis, but did not seek to

procure a travel document as specified in his OSUP guidelines. Doc. 13, p. 3. On April

11, 2007, ICE requested new travel documents for Petitioner from the Jamaican

Consulate. Id. Petitioner was instructed to return to the Tampa ICE office for a

telephonic interview with the Jamaican Consulate, but Petitioner never again reported to

the office and, hence, the interview never took place. Id., at 4. 

On February 2, 2010, Petitioner was returned to ICE custody after serving a

sentence for possession of cannabis with intent, possession of cannabis less than 20

grams, and possession of drug paraphernalia. Doc. 13, p. 4. Petitioner again claimed

that he was born in St. Thomas, U.S. Virgin Islands, and that he is a United States

citizen. Id. ICE had previously determined Petitioner's claim was invalid and his

allegedly supporting documentation was fraudulent. Id. 

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Petitioner was entered into ICE's electronic Travel Document system on

February 9, 2010, and frequent checks are made with the Jamaican consulate office for

updates on the issuance of a travel document for Petitioner. Doc. 13, p. 4. Petitioner

maintains that he has no knowledge of life in Jamaica and refuses to cooperate with the

Jamaican Consulate Officer conducting interviews. Id. Accordingly, there has been no

issuance of a travel document for Petitioner as of this date by the Jamaican

government. Because Petitioner refuses to give any basic information, even to the

Jamaican Consulate, there is little that ICE can do to assist in obtaining a travel

document.

Petitioner has been served with numerous letters concerning his failure to comply

with removal efforts. Doc. 13, p. 5. Due to Petitioner's continued failure to cooperate,

Petitioner's case was referred to the United States Attorney's Office for the Northern

District of Florida for criminal prosecution in October of 2010, but the office declined to

prosecute the case on November 21, 2010. Doc. 13, p. 5. The ability to remove

Petitioner to his true country of citizenship, Jamaica, has been hampered solely by

Petitioner's refusal to cooperate with ICE officials or the Jamaican Consulate. Id. 

Petitioner's Replies

Petitioner's first reply was submitted on April 6, 2011, doc. 14, and erroneously

claimed Respondents had failed to respond to the petition. Petitioner was advised that

was incorrect and given another opportunity to reply, specifically advising him to

address Respondents' argument that Petitioner was a Jamaican citizen. Doc. 15. 

Petitioner's second reply, submitted on May 3, 2011, was a letter indicating he

was trying to find out about his case and asserting that he did not want to sign any

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forms stating he was from Jamaica because he is not from that country. Doc. 16. 

Petitioner's letter was not in the proper format, was not signed under penalty of perjury,

and no certificate of service was attached. In May, another order was entered advising

Petitioner that his two responses were insufficient and directing him to provide an

appropriate response which contained a certificate of service. Doc. 17. 

Petitioner's third reply, doc. 18, was inappropriately styled as another letter. 

Petitioner asserted he had not received the answer from Respondents, and indicating

he did not understand about the need for a certificate of service. He again claimed that

ICE was "trying to force [him] to sign for a country where" he was not from. Id. Another

order was entered providing additional explanation to Petitioner. Noting that Petitioner

had made statements in his response, doc. 18, suggestion he was aware of

Respondents' arguments, Petitioner was provided yet another opportunity to file a

response. In particular, Petitioner was ordered to "address the merits" of the answer,

doc. 13, and he was directed to "demonstrate that he has cooperated with removal

efforts and demonstrate that he is a native of St. Thomas in the U.S. Virgin Islands as

he claimed in the petition, doc. 1. Doc. 19. 

Petitioner has not filed a response to that order. However, Petitioner filed a

notice of change of address, doc. 20, and then a second notice of change of address,

doc. 22, in which he said he had "been working on" the "native situation" and attached a

birth certificate application form to that notice, indicating he was requesting a birth

certificate from the Virgin Islands, Island of St. Thomas. Doc. 22, p. 3. 

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Analysis

Petitioner's latest response, doc. 22, indicates he was aware of the order

requiring him to come forward with some evidence to support his claim that he is a

native of St. Thomas. Yet, filing a notice showing Petitioner made an "application for

birth record" from the Virgin Islands falls woefully short of the required demonstration

that he is a native of St. Thomas. Furthermore, Petitioner has failed to respond in any

meaningful way to the arguments raised in the answer, and Petitioner has failed to reply

under penalty of perjury. Sufficient opportunities have been provided to Petitioner to

support his habeas petition, and there is no need to delay further ruling on this petition.

This Court has jurisdiction over this § 2241 habeas petition as Petitioner is not

challenging a final order of removal, but only seeking release from what he asserts is an

unlawful and indefinite period of detention pursuant to Zadvydas v. Davis, 533 U.S. 678,

121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). In Zadvydas, the Supreme Court held that the

continued detention of legal permanent aliens beyond the mandated 90-day2 removal

period was permissible under the Constitution, but only for as long as was "reasonably

necessary to bring about that alien's removal from the United States." Id., at 689, 121

S. Ct. at 2498. For the sake of uniform administration by the federal courts, the

Zadvydas Court held that "the presumptive period during which the detention of an alien

is reasonably necessary to effectuate his removal is six months; after that, the alien is

eligible for conditional release if he can demonstrate that there is 'no significant

likelihood of removal in the reasonably foreseeable future.' " Clark v. Martinez, 543 U.S.

 2 Section 1231(a)(1)(A) provides that the government has a 90-day "removal period"

to remove an alien ordered removed from the United States. 8 U.S.C. § 1231(a)(1)(A). 

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371, 125 S.Ct. 716, 722, 160 L.Ed.2d 734 (2005), quoting Zadvydas, 533 U.S. at 701,

121 S.Ct. at 2505. The Court also concluded that if "removal is no longer reasonably

foreseeable, continued detention is no longer authorized by statute." Zadvydas, 533

U.S. at 699, 121 S.Ct. at 2503. 

In Clark v. Martinez, supra, the Court extended its interpretation of 8 U.S.C. §

1231(a)(6) to inadmissible aliens.3

 The Court concluded that there was no reason why

the period of time reasonably necessary to effect removal would be longer for an

inadmissible alien than for an admissible alien. Clark, 543 U.S. at 386, 125 S.Ct. at

727. Thus, it held that the 6-month presumptive detention period prescribed in

Zadvydas should be applicable. Id. Accordingly, under Clark and Zadvydas, when an

alien shows that he has been held more than six months beyond the removal period

and his removal is not reasonably foreseeable, a § 2241 petition should be granted.

Clark, 543 U.S. at 386-387, 125 S.Ct. at 727; Benitez v. Wallis, 402 F.3d 1133, 1135

(11th Cir. 2005) (relying on Clark to hold that "an inadmissible alien can no longer be

detained beyond the statutory 90-day removal period of § 1231(a)(1), where there was

no significant likelihood of removal in the reasonable foreseeable future."). 

Under 8 U.S.C. § 1231(a)(1)(A), the government has a 90-day period of time to

remove an alien. However, the removal period "shall be extended beyond a period of

90 days and the alien may remain in detention during such extended period if the alien

 3 The relevant statute provides: "An alien ordered removed who is inadmissible

under section 1182 of this title, removable [for violations of nonimmigrant status or entry

conditions, violations of criminal laws, or threatening national security] or who has been

determined by the Attorney 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 released,

shall be subject to the terms of supervision in paragraph (3)." 8 U.S.C. § 1231(a)(6),

quoted in Benitez v. Wallis, 402 F.3d 1133, 1134 (11th Cir. 2005).

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fails or refuses to make timely application in good faith for travel or other documents

necessary to the alien's departure or conspires or acts to prevent the alien's removal

subject to an order of removal." 8 U.S.C. § 1231(a)(1)(C).4 Thus, the statute expressly

permits an alien to be detained longer than the presumptive removal period where the

alien acts or conspires to prevent his removal. 

In Sango-Dema v. District Director, I.N.S., 122 F.Supp.2d 213 (D. Mass. 2000), a

case decided before Zadvydas, the court denied habeas relief where the Petitioner was

found to be "the cause for the long delay." The court concluded that "an alien cannot

trigger [a constitutional right to be free from indefinite detention by the INS] with his

outright refusal to cooperate with INS officials." Sango-Dema v. District Director, I.N.S.,

122 F.Supp.2d at 221. 

In Powell v. Ashcroft, 194 F.Supp.2d 209 (E.D. N.Y. 2002), a case decided in the

wake of Zadvydas v. Davis, the court noted that Zadvydas was concerned with the

constitutionality of § 1231(a)(6) where aliens were in " ''deportation limbo because their

countries of origin had refused to allow [them] entrance.' " Powell, 194 F.Supp.2d at

211, citing Sango-Dema, 122 F.Supp.2d at 221 (explaining Zadvydas). The court held

that Zadvydas was inapplicable because it "did not discuss the constitutionality of

Section 1231(a)(1)(C) and the tolling of the removal period during the time of an alien's

non-cooperation." Powell, 194 F.Supp.2d at 212, citing Guner v. Reno, 2001 WL

940576 (S.D. N.Y. Aug. 20, 2001). The court held that petitioner's continued detention

was appropriate because he had not "provide[d] accurate and complete information to

the INS," and that after he did so, it was likely that he would be removed. Powell, 194

 4 An alien must be detained during the "removal period." 8 U.S.C. § 1231(a)(2). 

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F.Supp.2d at 212. See also Archibald v. I.N.S., 2002 WL 1434391, *8 (E.D. Pa. July 1,

2002) (finding the case factually distinguishable from Zadvydas where "Archibald's

detention [was] a direct result of his seeking relief from deportation" and holding that

because his indefinite detention was a result of his requesting a stay, he could not "be

heard to complain[] that the time period during which he has been detained constitute[d]

a denial of due process."); Thevarajah v. McElroy, 2002 WL 923914 (E.D.N.Y. Apr. 30,

2002)(holding that petitioner's nearly five years in the custody of INS was constitutional

following Zadvydas because the continued detention was lengthened largely because of

petitioner's own actions); cf. Seretse-Khama v. Ashcroft, 215 F.Supp.2d 37 (D.D.C. July

22, 2002) (rejecting respondent's argument that petitioner "has not cooperated in

obtaining travel documents because he told Liberian officials that he did not want to

return to Liberia" and noting that INS had not argued that "petitioner refused to request

travel documents or refused to be interviewed by Liberian officials" and did not deny "his

Liberian citizenship, or gave false or misleading information that impeded the issuance

of travel documents."). 

In this case, Petitioner's six-month period of removal pursuant to Zadvydas has

been tolled as permitted by 8 U.S.C. § 1231(a)(1)(C). Petitioner has not come forward

with any documentary proof at all to support his assertion that he is a citizen of the

United States by virtue of having been born in the Virgin Islands. Moreover,

Respondents have demonstrated on this record that such an assertion is not true. 

Respondents have shown that Petitioner's social security number was invalid and that

his birth certificate (presented during his July 30, 2002, interview) was fraudulent. 

There is no basis to believe Petitioner is from the Virgin Islands. 

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Moreover, Respondents have shown that Petitioner was previously removed to

Jamaica. Thus, if Petitioner were cooperating with removal efforts as required,

Petitioner could already have been removed from the United States and living freely in

Jamaica. Petitioner has not made the required showing that it is not significantly likely

that his removal could be carried out in the reasonably foreseeable future. Zadvydas,

533 U.S. at 701, 121 S.Ct. at 2505. Based on that ground alone, the petition should be

denied.

However, it may also be denied because Petitioner has failed to make any

showing that he has cooperated with removal efforts. Petitioner has thwarted the

removal process by asserting a citizenship that has already been proven untrue.

Petitioner is the cause of his extended period of detention and may not be heard to

complain of delay in effecting his removal. Because Petitioner has acted to toll the

removal period, his continued detention is lawful pursuant to 8 U.S.C. § 1231(a)(1). 

Should Petitioner cooperate with Jamaican officials and ICE officials, it is reasonable to

believe documents can again be provided to effect his removal. This § 2241 petition

should be denied.

Accordingly, it is RECOMMENDED that the petition for a writ of habeas corpus

filed by DWIGHT DENNIS pursuant to 28 U.S.C. § 2241, doc. 1, be DENIED.

IN CHAMBERS at Tallahassee, Florida, on September 14, 2011.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

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