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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

FITZROY WHITE, 

A-078-513-888,

Petitioner,

vs. Case No. 4:11cv212-MP/WCS

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

Respondents.

 /

REPORT AND RECOMMENDATION

Petitioner filed a pro se petition for writ of habeas corpus under § 2241 on May

11, 2011. Doc. 1. Petitioner alleged that he had been in held immigration detention for

ten months at the time the petition was filed and claimed it was not significantly likely

that Respondents would carry out his removal in the reasonably foreseeable future. Id.,

at 6-8. Petitioner sought release from custody pursuant to Zadvydas v. Davis, 533 U.S.

678 (2001). Id., at 8.

Respondents filed an answer to the petition asserting that Petitioner's detention

is lawful because it is a result of Petitioner's own actions in preventing his removal. 

Doc. 13. Respondents point out that Petitioner failed to board an aircraft in November,

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2010, which would have returned him to his native country of Jamaica. Since that time,

he has refused to cooperate with removal efforts. Respondents assert that Petitioner's

removal period has been suspended pursuant to federal law during the time in which

Petitioner has failed to cooperate with efforts to remove him. Id., at 8. 

Petitioner has submitted a reply, doc. 14, which was erroneously filed by the

Clerk's Office because Petitioner did not sign the reply. Nevertheless, the arguments in

the reply have been considered, including Petitioner's admission that he refused to be

removed, albeit on the grounds that Petitioner contends he has never used the name

George Edwards. Petitioner states that he has only used two names: Fitzroy White and

O'Neil James. Id., at 2-3. Petitioner contends he is willing to be removed under either

of those two names, but not as a person named George Edwards. Id., at 4. 

Relevant Facts

Petitioner is a native and citizen of Jamaica. Doc. 13, p. 1. Petitioner first

attempted to enter the United States on March 2, 2011, with a "photo-switched

passport." Doc. 13, p. 2; see also doc. 14, pp. 1-2.1

 Petitioner acknowledges

attempting to entered the United States on March 2, 2001, "with a photo switched

passport" but contends it bore "the name Fitzroy White, date of birth January 1st, 1974." 

Doc. 14, p. 1. Petitioner asserted, "I know for a fact that George Edwards was never

listed in the passport." Id., at 2. Nevertheless, a copy of that passport was provided by

 1 Petitioner acknowledges attempting to entered the United States on March 2, 2001,

"with a photo switched passport" but contends it bore "the name Fitzroy White, date of

birth January 1st, 1974." Doc. 14, p. 1. Petitioner asserted, "I know for a fact that

George Edwards was never listed in the passport." Id., at 2. However, a copy of that

passport was provided by Petitioner and by Respondents, and both copies show it is

issued to George Edwards, and contains a printed signature for George Edwards. See

doc. 13-2, pp. 3-4; doc. 14-1, pp. 2-3. 

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Petitioner and by Respondents, and both copies show it is issued to George Edwards,

and contains the printed signature for George Edwards. See doc. 13-2, pp. 3-4; doc.

14-1, pp. 2-3. Respondents assert that the passport bore the name George Edwards. 

Petitioner was charged with "being inadmissible to the United States as an alien

who sought to procure admission by fraud or willfully misrepresenting a material fact"

and charged with "inadmissibility for failing to have a valid, unexpired entry document." 

Doc. 13, p. 2. On March 3, 2001, Petitioner was returned to Jamaica. Doc. 14, p. 2.

Petitioner reentered the United States and on June 26, 2008, he "was arrested

by the Massachusetts State Police with a duffle bag of marijuana located in the vehicle

he was driving.2 Doc. 13, p. 2; doc. 14, p. 2. On August 14, 2008, after release from

the Plymouth House of Correction, Petitioner was detained by I.C.E..3 Id. 

A travel document was obtained for Petitioner on February 13, 2009, and was

valid for one trip to Jamaica on February 27, 2009. Doc. 13, p. 2. This initial travel

document was issued in the name of George Edwards "based on the presentation of the

passport that he provided upon his entry into the United States." Doc. 13-1, p. 2. On

the scheduled removal date, Petitioner refused to cooperate and I.C.E. was unable to

effect his removal. Doc. 13-1, p 2. A memorandum from the Immigration Agent

attempting to carry out Petitioner's removal states that Petitioner told the officer he did

not "want to be deported and that if we attempted to place him on the plane that he

 2 Petitioner was arrested under the name Fitzroy White, with a date of birth of

January 1, 1974. Doc. 14, p. 18. Petitioner was charged with five counts, one of which

included refusing to give his name and address or giving a false name or address. Id.,

at 19. 

 3

 The order of removal was final on July 7, 2008. Doc. 14, pp. 20-24.

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would cause problems on the flight." Doc. 14-1, p. 10. Petitioner said he had no

clothes or money and "continually refused to change into civilian clothes or sign any

paper work needed to complete the removal process." Id. The Officer "decided to

terminate the escort detail due to [Petitioner's] failure to comply with his Order of

Removal." Id. 

Petitioner does not dispute that he "refused to go on the transport van." Doc. 14,

p. 3. Petitioner contends that he refused because I.C.E. was "trying to deport [him] the

wrong way" by using the "incorrect" name of George Edwards. Id. Petitioner contends

the only "two names [he] ever used before" were "Fitzroy White or O'Neil James." Id. 

Petitioner was served with a Notice of Failure to Comply on April 14, 2009. Doc.

13-1, p. 2. In July, 2009, Petitioner's custody was transferred to the United States

Marshal's Service so Petitioner could "serve his sentence as a result of his June 26,

2008, substance control arrest." Id. Petitioner was in criminal custody until July 7,

2010, when he was returned to the custody of I.C.E. Id.

On November 9, 2010, Petitioner was scheduled for the second time to be

removed from the United States.4

 Doc. 13-1, p. 2. Once again, Petitioner refused to

board the aircraft and became "physically combative at which point the captain of the

aircraft refused to let him board." Id. Petitioner made claims during that altercation that

he "would fight not to get on the plane and that ICE did not have proper documentation

to remove him from the United States." Id.

 4 Petitioner provided a copy of the travel document prepared for George Edwards, for

travel on November 9th, going to Kingston Manley, Jamaica. Doc. 14, p. 14. 

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Petitioner does not dispute this incident either. Doc. 14, p. 5. He acknowledges

that he was transported to JFK International Airport with another alien. Id. Petitioner

said he told the officers "right away" that he was "not going on the plane under the

name George Edward." Id. Petitioner says that he wants "to go so bad" and is "ready

to go" but he was "not using George Edward." Id. 

Petitioner also stated that a month earlier, in October, 2010, another effort was

made to remove him.5

 Doc. 14, p. 4. Petitioner said that when officials put him "in the

ICE vehicle," Petitioner said "that name George Edwards is not my name." Id.

Petitioner said that he "never used that name and the name [he] used to come to the

United States [was] Fitzroy White, date of birth January 1st, 1974." Id. Petitioner

asserts that he told "the ICE officer to use" the name Fitzroy White to remove him and

said he "was ready to go if you use any one of [the] two names and not George

Edward." Id., at 4. On this occasion, the official from ICE attempted to check Petitioner

in for departure but returned approximately thirty minutes later and said that he could

not get "Clearance." Id., at 5. The official told Petitioner "Jamaica will not take you and

we cannot do anything about it or put you on the plane." Id. Petitioner again claimed

there was "something wrong with this name and the document." Id. Attached to the

reply is an Emergency Certificate, number 113050, for deportation to Kingston, Jamaica

on October 14, 2010, from JFK, New York. Doc. 14-1, pp. 16-17. The certificate is

 5 Attached to the reply is a copy of a Corporate Security Transportation Report for Air

Jamaica, dated October 20, 2010, and accepting George Edwards for "travel without

escort." Doc. 14, p. 13. It provided a date of birth of January 1, 1974, and indicated

there was a valid Jamaican passport and place of birth (POB) was Jamaica. Id. 

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issued to George Edwards, a citizen of Jamaica, listing the date of birth as March 31,

1974. Id., at 17.

Petitioner said that in November, 2010, his sister sent several documents by

facsimile to the Jamaican consulate, including "birth certificates and police record with

[his] fingerprint." Doc. 14, p. 6. Petitioner reports the "name on the documents [was]

Christopher O'Neil James, date of birth September 2nd, 1970." Id. 

At an unspecified time in early 2011, Petitioner met with Mr. Vance Carter from

the Jamaican Consulate. Id., at 6-7. Petitioner identified himself as "Christopher

O'Neill6 James" with a date of birth on September 2, 1970. Id., at 7. Petitioner said he

lived in Kingston, Jamaica. Id. Petitioner also claimed that an ICE official told Petitioner

to tell Mr. Carter that his name was George Edward. Petitioner said that he asked the

official, "Why are you forcing me to own a name that I have never used?" Id.

Respondents assert that during Petitioner's interview with Mr. Carter, he "failed to

provide accurate information for verification of identity and claimed that the information

on his removal documents [was] incorrect." Doc. 13-1, p. 2. Furthermore, Petitioner

was interviewed a second time by Mr. Carter on April 4, 2011. Id., at 3. On this

occasion, Petitioner "now claims that his name is James O'Neill7

 and that he has no

idea where any other alias came from." Id. 

 6 Petitioner spells this name sometimes as O'Neill and other times as O'Neil.

 7

 Presumably, at the first meeting with Vance Carter in February, 2011, Petitioner

gave his name as Fitzroy White. That is the name Petitioner asserts he signed on

March 3, 2011, when he was initially removed from the United States. See doc. 14-1, p.

6. 

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A copy of the Jamaican passport Petitioner used to first enter the United States

has been provided by both parties. Doc. 14-1, pp. 3-4; doc. 13-1, pp. 3-4. It bears

passport number 2346931 and is issued to George Edwards and lists the date of birth

as March 31, 1974. Doc. 14-1, pp. 3-4. The parties also provided a copy of a United

States of America Visa, also issued in the name of George Edwards, and listing a date

of birth of March 31, 1974. Doc. 13-1, p. 5; doc. 14-1, p. 5. The visa was issued on

July 27, 1999 and expired July 26, 2009, and was issued for Jamaican passport number

2346931, the same passport used to initially enter the United States. Doc. 14-1, p. 5. 

Id. 

Petitioner provided a copy of a Notice of Alien Ordered Removed dated March 2,

2001, issued to Fitzroy White, A/K/A George Edwards. Doc. 14-1, p. 7. The verification

of removal shows a departure date of March 3, 2001, from New York, and states that

Petitioner "refused to sign." Id. The supporting Determination of Inadmissibility lists

Petitioner as Fitzroy White, A/K/A George Edwards, with a date of birth of January 1,

1974. Doc. 14-1, p. 8. There is no signature for Petitioner in any document submitted

as evidence and, instead, there are numerous references that he "refused to sign" the

documents. Doc. 14-1, pp. 7, 9, 11, and 12. 

Indeed, having reviewed the documents in this case and noting that Petitioner

failure to provide a signature, the initial petition has been reviewed. Doc. 1. Petitioner

typed his name, but provided no signature in that document either. Id., at 10.8

 On one

of the exhibits, Petitioner attempts to refute the notation on a Notice to Alien Ordered

 8 That mistake should have been observed earlier and Petitioner required to sign the

petition prior to service. Because Petitioner paid the filing fee, there is no signature on

an in forma pauperis motion either.

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Removed that he refused to sign. Doc. 14-1, p. 6. Underneath that notation, Petitioner

wrote9 that "Petitioner signed Fitzroy White right here." Id. Therefore, Petitioner's

argument in reply must be considered argument only and not evidence as it is unsworn

and unsigned. 

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

continued detention of legal permanent aliens beyond the mandated 90-day10 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,

 9 While I am not trained in hand-writing analysis, comparison of the G and R in

Petitioner's writing appears to be the same hand-writing as is shown in the printed

signature of George Edwards on the Jamaican passport. Id., at 3. It is unusual to see a

lowercase g used as the first initial, and the hand-writing in both documents also

alternates with lower and upper case letters. This appears to be the same hand-writing.

 10 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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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.11 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

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

 11 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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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).12 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

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

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

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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 argued that he has

only used two names - Fitzroy White and O'Neill James - yet that assertion is

contradicted by Petitioner's own admission that when he first entered the United States

on March 2, 2001, he did so with a "photo switched passport." Doc. 14, p. 1. Petitioner

contends it was issued in the name of Fitzroy White, but that claim is not supported by

the copy of the passport, nor does it make sense in light of his admission that it was

photo switched. A photo switched passport must necessarily show Petitioner's image,

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but must list a different name. If Petitioner contends that his name is Fitzroy White, then

it is nonsense to assert that that was the name on the passport. 

The undisputed evidence here is that Petitioner's passport is in the name of

George Edwards, and that is the name listed on his Visa. Having used that name to

enter the United States unlawfully, Petitioner cannot be heard to complain about using

that name to depart the United States. Furthermore, Petitioner has argued that the date

of birth listed for him is incorrect, doc. 14, p. 8, but similarly, Petitioner's argument is of

no avail. Petitioner's Visa lists his date of birth as March 31, 1974, doc. 14-1, p. 5, as

does the passport. Id., at 4. The travel document issued for Petitioner bears that same

date of birth. Doc. 14-1, p. 15. That Petitioner provided other birthdates at other times

does not provide a basis to refuse to cooperate with immigration officials. I note that

Petitioner's criminal complaint in Massachusetts listed his date of birth as January 1,

1974, under the name Fitzroy White. Doc. 14, p. 18. Petitioner also acknowledges

having used the name O'Neil James, and provided a date of birth for that name as

September 2, 1970. Doc. 14, p. 5. 

Petitioner has disputed his true identity and date of birth, but there has never

been a dispute that Petitioner is a native and citizen of Jamaica, that he was not lawfully

admitted into the United States, and that Petitioner has been ordered removed back to

Jamaica. There is also no disputed that Petitioner is the cause of his extended

detention. Indeed, at no point has Petitioner sought to prove his real name. Thus,

Petitioner may not be heard to complain of delay in effecting his removal. Petitioner has

acted to toll the removal period and his continued detention is lawful pursuant to 8

U.S.C. § 1231(a)(1). 

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Petitioner has not met his burden under Zadvydas because he could have

already been removed from the United States had he wilfully boarded the airplane. 

Jamaican officials have on more than one occasion provided travel documents for

Petitioner and, it is reasonable to believe documents can again be provided to effect his

removal. Petitioner has failed to show that it is unlikely that he can be removed in the

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

Petitioner can be removed when Petitioner is willing to cooperate and this § 2241

petition should be denied.

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

filed pursuant to 28 U.S.C. § 2241 in the name of Fitzroy White, doc. 1, be DENIED.

IN CHAMBERS at Tallahassee, Florida, on August 29, 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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