Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

OLOPADE OLA OYEYEMI,

Agency No.: A-200-335-325,

Petitioner,

vs. Case No. 4:11cv145-SPM/WCS

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

Respondents.

 /

REPORT AND RECOMMENDATION

The pro se Petitioner filed a petition for writ of habeas corpus under § 2241, doc.

1, and Respondents filed a response to the petition on June 15, 2011. Doc. 23. 

Petitioner has filed a reply, doc. 26, and a notice of change of address, doc. 24.1

 

In the petition, doc. 1, Petitioner alleges that he was arrested on December 14,

2009, and has been held in detention since that time. Doc. 1, p. 2. Petitioner states

that this habeas action "does not challenge the validity of the removal order against

 1 The change of address advises that Petitioner was moved from Krome Processing

Centre in Miami to the Baker County Jail. Doc. 24. Petitioner's reply, doc. 26, reveals

that he has been returned to the Wakulla County Jail in Crawfordville, Florida. Although

he did not clearly file another change of address as instructed throughout this case, the

Clerk has noted the new address on the docket.

Case 4:11-cv-00145-SPM-WCS Document 27 Filed 06/30/11 Page 1 of 7
Page 2 of 7

him" but only his "continued detention by Respondent[s], who refuse to release him

even thought [sic] they are unable to deport him and [will] be unable to deport him [in]

the foreseeable future." Id. 

Petitioner is a native and citizen of Nigeria. Id., at 3. The order of removal was

entered on June 29, 2010, and Petitioner appealed the order to the B.I.A. Id. The

appeal was denied as well as his request for reconsideration, making the appeal not

final until February 24, 2011. Id. Therefore, at the time this case was initiated on April

8, 2011, Petitioner had only been in detention beyond the final order of removal for less

than two months.

The Answer, doc. 23

Petitioner was admitted into the United States in December of 1987 "as a nonimmigrant visitor for pleasure for a temporary period of time not to exceed six months." 

Doc. 23, p. 1. Petitioner remained in the United States beyond the authorized time and,

while here, committed several crimes. Id., at 2. When Petitioner went to the U.S.

Citizenship and Immigration Services Office in Jacksonville, Florida seeking immigration

benefits, immigration officers took him into custody. Id. 

Petitioner's initial immigration hearing before an Immigration Judge was January

4, 2010. Id. The Immigration Judge entered the removal order on June 29, 2010. Id.

Petitioner timely appealed the removal decision on July 9, 2010, and the appeal was

dismissed on November 8, 2010. Id., at 2. Petitioner file a motion to reopen on

December 10, 2010, and that motion was denied on February 16, 2011. 

Throughout the period of detention, Petitioner has "openly stated that he would

not cooperate with his removal and would rather die than return to Nigeria." Id., at 3. At

Case No. 4:11cv145-SPM/WCS

Case 4:11-cv-00145-SPM-WCS Document 27 Filed 06/30/11 Page 2 of 7
Page 3 of 7

various times, Respondents contend that Petitioner refused to cooperate with removal

efforts. Id., at 2-3. Indeed, Respondents submit that "Nigeria finally issued an

emergency travel document for the Petitioner's removal on or about May 19, 2011." Id.,

at 3. Petitioner was scheduled for a removal flight back to Nigeria on June 2, 2011. Id.

On that day, "Petitioner acted on his prior threats and refused to board a commercial

aircraft for his removal from the United States to Nigeria." Id. Thus, Petitioner remains

in custody. Id. 

Petitioner's Reply, doc. 26

Petitioner contends that he has truthfully admitted he is "a national of the country

to which ICE seeks to remove him" and there is "no allegation that he has provided

false or misleading information, and where the alien has done whatever has been asked

of him to facilitate his removal." Doc. 26, p. 2. Petitioner states that the contention that

he "is not cooperating is meritless and provides no basis for the suspension of the

removal period or Petitioner's continued unlawful detension [sic]." Id., at 4. Petitioner

does not mention his refusal to board the airplane to Nigeria on June 2, 2011.

Analysis

The Supreme Court held that an alien's post-removal-period detention is limited

to "a period reasonably necessary to bring about that alien's removal from the United

States." Zadvydas v. Davis, 533 U.S. 678, 689, 121 S.Ct. 2491, 2498, 150 L.Ed.2d 653

(2001). For the "sake of uniform administration in the federal courts," the Court held

that six months is a presumptively reasonable period of time to detain an alien awaiting

removal. Id. at 701, 121 S.Ct. at 2505. "After this 6-month period, once the alien

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

Case No. 4:11cv145-SPM/WCS

Case 4:11-cv-00145-SPM-WCS Document 27 Filed 06/30/11 Page 3 of 7
Page 4 of 7

reasonably foreseeable future, the Government" may be called on "to rebut that

showing." Id. at 701, 121 S.Ct. at 2505. If the petition fails to show prolonged detention

of at least six months, the petition may be dismissed. Akinwale v. Ashcroft, 287 F.3d

1050, 1052 (11th Cir. 2002) (holding that the "six-month period thus must have expired

at the time [the]§ 2241 petition was filed in order to state a claim under Zadvydas."). 

Here, Petitioner had only been in detention for less than two months after the removal

order became final when he filed the § 2241 petition. This case should be dismissed as

premature. 

However, it is more appropriate to dismiss this case because Petitioner has failed

to make the showing as required under Zadvydas. In Zadvydas, the Supreme Court

held that after the presumptive six-month period, "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. 371, 125 S.Ct. 716, 722,

160 L.Ed.2d 734 (2005), quoting Zadvydas, 533 U.S. at 701, 121 S.Ct. at 2505. Under

that clear language, Petitioner is not eligible for conditional release because he has not

shown that removal is not foreseeable. An affidavit provided with Respondent's answer

demonstrates that travel documents were received by Nigeria and Petitioner was

scheduled to return to his native country on June 2, 2011. Doc. 23-1, p. 2. Petitioner

refused to board the aircraft and prevented his own removal. Id.

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

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

Case No. 4:11cv145-SPM/WCS

Case 4:11-cv-00145-SPM-WCS Document 27 Filed 06/30/11 Page 4 of 7
Page 5 of 7

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) (emphasis added). 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. Here, Petitioner's

removal has been extended by Petitioner's own efforts.

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

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). Zadvydas is

inapplicable because it was not concerned with tolling 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); 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

 2 This case was decided before Zadvydas.

Case No. 4:11cv145-SPM/WCS

Case 4:11-cv-00145-SPM-WCS Document 27 Filed 06/30/11 Page 5 of 7
Page 6 of 7

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 another case, Pelich v. I.N.S., 329 F.3d 1057 (9th Cir. 2003), the court

found that petitioner's detention was "indefinite only because he refuse[d] to cooperate

with the Immigration and Naturalization Service's ("INS") efforts to remove him." Pelich,

329 F.3d at 1057. In such circumstances, the court concluded that the petitioner had

"no cause to complain" and the denial of his § 2241 habeas petition was affirmed. 329

F.3d at 1057-58.

In this case, Petitioner has failed to meet his burden under Zadvydas because

after the presumptive six month removal period has expired, he cannot provide "good

reason to believe that there is no significant likelihood of removal in the reasonably

foreseeable future." Zadvydas, 533 U.S. at 701, 121 S.Ct. at 2505. Petitioner is

hindering his removal. His removal would have been carried out on June 2, 2011, had

he cooperated and boarded the flight to Nigeria.

Case No. 4:11cv145-SPM/WCS

Case 4:11-cv-00145-SPM-WCS Document 27 Filed 06/30/11 Page 6 of 7
Page 7 of 7

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

doc. 1, filed by Olopade Ola Oyeyemi pursuant to 28 U.S.C. § 2241, be DENIED

because this petition was filed prematurely and because Petitioner has acted to prevent

his removal from the United States. 

IN CHAMBERS at Tallahassee, Florida, on June 30, 2011.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

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

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

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

scope of review of proposed factual findings and recommendations.

Case No. 4:11cv145-SPM/WCS

Case 4:11-cv-00145-SPM-WCS Document 27 Filed 06/30/11 Page 7 of 7