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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DAVID OLUSOLA OLADOKUN, 

A-073-702-543,

Petitioner,

vs. Case No. 4:11cv200-RH/WCS

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

Respondents.

 /

REPORT AND RECOMMENDATION

Petitioner, initiated this pro se petition for writ of habeas corpus under 28 U.S.C.

§ 2241 on May 6, 2011. Doc. 1. Petitioner is a native of Nigeria, and was ordered

removed from the United States in 2005. Id. Petitioner does not challenge the order of

removal, but seeks release from detention under Zadvydas v. Davis, 533 U.S. 678

(2001). Petitioner contends Respondents "refuse to release him even though they are

unlikely to remove him and will be unlikely to deport him from the United States in the

reasonably foreseeable future." Id., at 2.

Respondents filed a response and motion to dismiss the petition. Doc. 13. 

Petitioner has been directed to file a reply, doc. 14, to the motion to dismiss. In this

process, the Court has ensured that Petitioner received the motion to dismiss, see doc.

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17, and counsel for Respondents have taken commendable efforts to ensure Petitioner

received the response and motion to dismiss. See doc. 18. Petitioner has now filed his

reply, doc. 20, and the petition is ready for ruling.

Response and Motion to Dismiss, doc. 13

Respondents assert that Petitioner's order of removal became final on February

3, 2005,1

 when the Board of Immigration Appeals affirmed the Immigration Judge's

decision to deny Petitioner's applications for asylum and order removal under 8 U.S.C. §

1182(a)(6)(A)(i). Doc. 13, p. 2. In May, 2005, the United States Immigration and

Customs Enforcement (hereinafter "ICE") began efforts to locate Petitioner and carry

out the removal order. Doc. 13, p. 3; doc. 13-1 (Pasterak declaration).2

 Those efforts

were unsuccessful as Petitioner moved to several places, left the state of Texas where

his initial immigration proceedings took place, and became a fugitive. Doc. 13-1, ¶ 4. 

Petitioner was eventually located after being arrested on October 31, 2010, in

Duval County, Florida. Id., at ¶ 5. An ICE detainer was placed against him and he

entered ICE custody in November, 2010. Id., at 5-6. ICE requested travel documents

from the Nigerian Consulate and on December 16, 2010, Petitioner "was interviewed by

the Nigerian Consulate and was approved to receive an emergency travel document for

travel to Nigeria." Id., at ¶ 7. Petitioner's travel document was received on January 26,

2011, and he was scheduled to be removed from the United States and returned to

Nigeria on February 8, 2011. Id. 

 1 Petitioner had alleged the order became final on April 28, 2006. Doc. 1, p. 3. That

dispute is irrelevant for purposes of this case. 

 2 The relevant facts are provided in the declaration of Deportation Officer Deborah

Pasterak, filed as exhibit 1 to the motion to dismiss. Doc. 13-1.

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On February 8th, Petitioner was taken to the Atlanta Airport and placed on the

aircraft as scheduled. Id., at ¶ 8. "Once he boarded the plane, the Petitioner started to

cause commotion which caused the Marshals to escort the Petitioner off the plane." Id.

After leaving the plane, Petitioner "became combative, physical, and attempted to flee

the ICE officers." Id. Force was required to place handcuffs on Petitioner and he was

escorted to ICE Detention. Id. When Petitioner left detention, he was taken to Grady

Hospital for a full examination because Petitioner claimed he was injured by ICE

officials. Id. Hospital staff "found that Petitioner did not have any injuries and was in

good health." Id. 

Petitioner was returned to the Wakulla County Jail on February 10, 2011, and

was served with a Notice of Failure to Comply. Id., at ¶¶ 9-10. Petitioner has remained

in detention since that time and has refused multiple times to sign or provide his

fingerprints on the Form I-229(a), Instructions to Detainee. Id., at ¶13. 

Respondents maintain that Petitioner's detention is legal in that he has "failed to

cooperate with his removal and has frustrated ICE's attempts to remove him." Doc. 13,

p. 5. Moreover, Respondents contend that "Petitioner cannot plausibly argue that his

removal is not likely to occur in the reasonably foreseeable future because the Nigerian

government has already approved a travel document for Petitioner on December 16,

2010, and ICE stands ready to remove him." Id., at 6. Respondents assert that "the

only obstacle to Petitioner's removal has been - and remains - his own refusal to

cooperate with ICE's efforts to remove him." Id.

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Petitioner's Reply, doc. 20. 

Petitioner claims that "Respondents have based their arguments on fabricated

lies and wrong information given to them . . . regarding the incident at Atlanta Fairfield

International Airport on February 8th, 2011 . . . ." Doc. 20, p. 2. Plaintiff asserts that he

"never boarded the Aircraft, neither did any marshall escorted [sic] him off the plane in

Atlanta Airport." Id. Petitioner states that he "did not cause commotion, get physical,

combative or attempted to flee the ICE Officers in Atlanta Fairfield International Airport." 

Id. Rather, Petition claims he "was attacked by two ICE Officers when he requested to

speak to the Pilots that he need to get some of his properties before leaving the United

States, which left him with injuries to his person when the two ICE Officers attempted to

force him into the Aircraft." Id. 

Petitioner also argues that when he was taken to Grady Memorial Hospital in

Atlanta, nurses "treated the bruises to his head, face, Knees and his right hand (wrist)

but no full examination was done as stated in the declaration." Id., at 2. Petitioner has

claimed that the declaration wrongfully asserts he did not have any injuries3

 and was in

good health. Id., at 3. Petitioner says that he "is not in good health" and asserts that he

"will not go back to Nigeria until he's fully recover[ed]." Id., at 11. 

Petitioner contends the actions of the ICE Officers "led to Petitioners refusal to

board the Aircraft on February 8, 2011 . . . ." Doc. 20, p. 3. Petitioner said:

 3 Throughout the reply, Petitioner asserts that he has been left "with injuries to his

person and he's been treated up until now and taking medication daily since the

incident." Doc. 20, p. 3. He contends he has "yet to recover from the injuries sustained

as a result of the attack." Id., at 10. He claims he "is not in good health and don't [sic]

know when he will be fully recover, [sic] so his removal is unlikely in the reasonably

foreseeable future." Id.; see also p. 11. Petitioner never identifies his injuries, and

regardless of such, this allegation does not provide a basis to grant the petition. 

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All the Petitioner asked for on the day he was to be deported (Tuesday

February 8th, 2011) is to talk to the Pilot (Delta Airline) that he need to get

some of his properties before leaving the United States, but instead of

granting or denying his request, the two ICE Officers without saying a

word or give command attacked him and try to use excessive force to put

him in the aircraft which cause several injuries to Petitioner.

Doc. 20, p. 4. Again, Petitioner claims "that it was the ICE Officers wrongful acts rather

than Petitioner's action that cause the incident and ultimately Petitioners refusal to

board the Aircraft in Atlanta Airport on February 8th, 2011." Id., at 5. 

Petitioner admits that he has stopped "signing form I-229 that will authorize ICE

to ever contact Nigerian Consulate for travel documents on his behalf . . . ." Id., at 10. 

In an exhibit submitted with his reply, Petitioner also acknowledges that on February 8,

2011, when Petitioner was boarding a plane from Tallahassee to Atlanta, he was asked

by ICE officers to sign some documents. Ex. 2; Doc. 20-1. Petitioner admits that he

"refused." Id. Then, while in the Atlanta airport with two other ICE Officers, Petitioner

reports: "There I told them that I am not going to board the aircraft because I doubt the

authenticity of the travel documents they obtained from Nigerian Consulate (which they

did not show to me)." Id. Petitioner also complained that he "did not have any of my

properties with me." Id.

Analysis

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

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continued detention of legal permanent aliens beyond the mandated 90-day4 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.

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 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.5

 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

 4 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). 

 5

 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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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

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).6

 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. 

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

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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

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

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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 denied his

citizenship, as he points out in his reply. Doc. 20, p. 4. Petitioner states that he

provided truthful information to ICE concerning his place of birth. Id. Furthermore,

Petitioner states that he signed form I-229 prior to February, 2011. Id. 

Petitioner's earlier cooperation, however, does not excuse his failure to

cooperate on February 8, 2011, and since that time. Despite Petitioner's argument that

he has not been hindering his removal, it is undisputed that Petitioner refused to board

the aircraft on February 8th to return to Nigeria. That plainly hindered and prevented his

removal. It is irrelevant why Petitioner refused to board the aircraft, whether he wanted

to speak to the pilots or whether he wanted to determine the authenticity of the travel

documents himself.7

 It is undisputed that travel documents were obtained, the flight

was prepared to leave the United States and take Petitioner to Nigeria, and Petitioner

refused to leave. Petitioner prevented his removal on February 8, 2011.

Moreover, even without the tolling period, Petitioner is not entitled to relief under

Zadvydas because his removal is reasonably foreseeable. It is undisputed that travel

documents were provided by Nigeria to remove Petitioner, and there is no reason to

believe they cannot again be provided. If Petitioner were cooperating with removal

 7 Petitioner admitted that he never was shown the travel documents. Thus, he has

no basis to doubt the legitimacy or authenticity of the documents. Moreover, airline

pilots are not responsible for providing property to Petitioner. 

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efforts as required, Petitioner could already have been removed from the United States. 

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. 

In summary, Petitioner absconded for five years after a final order of removal

was issued. He was eventually arrested in Jacksonville on a criminal charge. He now

impedes his removal by becoming combative when placed on the airplane in Atlanta

and trying to flee, and now refuses to allow his fingerprints to be taken. The § 2241

habeas petition should be denied.

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

filed by DAVID OLUSOLA OLADOKUN pursuant to 28 U.S.C. § 2241, doc. 1, be

DENIED.

IN CHAMBERS at Tallahassee, Florida, on September 15, 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 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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