1 While petitioner is no longer in the actual and present physical custody of David

O. Streiff, Warden of the Perry County Correctional Center in Uniontown, Alabama, see

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

(“Whenever 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.”), he was confined in the Perry County Correctional Center when he filed the

instant action and, therefore, this Court retains jurisdiction to decide this matter, see Patel v.

United States Attorney General, 334 F.3d 1259, 1263 (11th Cir. 2003) (“Habeas jurisdiction

requires that the petitioner be in ‘custody.’ ‘Custody’ is determined as of the time of the filing of

the petition.”).

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

WADE A. DRUMMOND, :

Petitioner, :

vs. : CA 06-0503-BH-C

UNITED STATES OF AMERICA, :

et al.,

:

Respondents.

REPORT AND RECOMMENDATION

Wade A. Drummond, a native and citizen of Jamaica ordered removed

from the United States and presently being detained by the United States

Department of Homeland Security, has petitioned this Court for habeas relief

pursuant to 28 U.S.C. § 2241.1

 This matter has been referred to the

undersigned for entry of a report and recommendation pursuant to 28 U.S.C.

Case 2:06-cv-00503-BH-C Document 21 Filed 03/28/07 Page 1 of 15
2

§ 636(b)(1)(B) and Local Rule 72.1(c). It is recommended that the instant

petition be dismissed, without prejudice to being filed at a later date in the

district of confinement, because Drummond prematurely filed the present

attack upon his post-removal-period detention.

FINDINGS OF FACT

1. Drummond is a native and citizen of Jamaica who entered the

United States on May 9, 1984 as a lawful permanent resident. (Doc. 15,

Exhibits 2 & 8) On May 21, 1998, Drummond was ordered removed from the

United States by an Immigration Judge and petitioner was physically removed

from the United States on September 24, 1998. (Doc. 15, Exhibit 2)

Thereafter, on December 11, 1998, Drummond attempted to re-enter the

United States “without advanced permission[.]” (Id.) Accordingly, petitioner

was charged with illegal reentry. (Id.) He was eventually convicted of

attempting to reenter the United States after deportation (Doc. 15, Exhibit 8,

at 2) and was sentenced to a period of seventy-seven (77) months

imprisonment (Doc. 20, Affidavit of Wade Anthony Drummond, at ¶ 5)

2. The Department of Homeland Security placed Drummond into

removal proceedings by the issuance of a Notice to Appear dated September

20, 2004. (Doc. 15, Exhibit 6) Petitioner was notified that his illegal reentry

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3

into the United States on December 11, 1998, after having been deported on

September 24, 1998, made him deportable. (See id.)

3. On March 2, 2005, Immigration Judge John B. Reid ordered

Drummond removed from the United States and returned to his native Jamaica.

(Doc. 15, Exhibit 7) 

4. Drummond timely appealed the Immigration Judge’s March 2,

2005 decision to the Board of Immigration Appeals. (See Doc. 13, Declaration

of Carla J. Ward, at ¶ 3 (“On March 17, 2005 an appeal of the Immigration

Judge’s removal order was filed with the Board of Immigration Appeals[.]”))

On August 1, 2005, the Board of Immigration Appeals issued its decision

affirming the Immigration Judge’s determination and dismissing the appeal.

(Doc. 15, Exhibit 8)

The respondent, a native and citizen of Jamaica, appeals

from the Immigration Judge’s March 2, 2005, decision finding

the respondent removable as charged and ineligible for relief

from removal. The appeal will be dismissed.

The respondent, a native and citizen of Jamaica, was

admitted to the United States as a lawful permanent resident on

May 9, 1984. The record reveals that on April 22, 1988, the

respondent pleaded guilty to and was convicted of the Texas

offense of unlawful possession of a controlled substance,

cocaine[.] On December 2, 1992, the respondent pleaded guilty

to and was convicted of the New York offense of criminal

possession of a weapon in the third degree[.] Thereafter, the

Department of Homeland Security . . . commenced removal

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4

proceedings against the respondent charging him with

removability under section 237(a)(2)(B) and (C) of the

Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B),

(C)[.] An Immigration Judge ordered the respondent removed

from the United States to Jamaica on May 21, 1998[.] The

respondent was removed from this country on September 24,

1998[.]

On December 11, 1998, the respondent attempted to reenter this country, without advance consent from the Attorney

General, by presenting a revoked resident alien card[.] The

respondent was subsequently convicted of attempting to re-enter

the United States after deportation[.] Thereafter, the DHS

commenced removal proceedings against the respondent

alleging that the respondent was removable as one inadmissible

at entry both as an alien convicted of a controlled substance

violation as described in section 212(a)(2)(A)(i)(II) of the Act,

8 U.S.C. § 1182(a)(2)(A)(i)(II), and as an alien previously

removed as described in section 212(a)(9)(A)(ii) of the Act.

The respondent on appeal challenges his removability

and asserts, in part, that the first order of removal was unlawful

and unfair because he was not considered for relief for which he

was eligible. The respondent’s arguments are without merit.

As an initial matter, the record reveals that the DHS

presented clear and convincing evidence establishing the

respondent’s removability as charged in both proceedings[.]

Turning to the issue of relief from removal, the respondent has

failed to establish eligibility for both cancellation of removal

and a waiver of inadmissibility under former section 212(c) of

the Act. With respect to cancellation of removal, as the

Immigration Judge noted, the respondent has not demonstrated

the requisite 7 years of residence. Contrary to the respondent’s

arguments on appeal, the respondent’s 1988 controlled

substance conviction ended the respondent’s continuous

residence for cancellation purposes.

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With respect to section 212(c) relief, although it appears

that the respondent may have been statutorily eligible for a

waiver of inadmissibility for his 1988 controlled substance

conviction before his earlier removal, such relief has not been

shown to have been available for the respondent’s 1992 firearms

conviction. While the firearms conviction did not constitute a

ground of inadmissibility that would preclude the respondent

from seeking adjustment of status under section 245(a) of the

Act, the record contains no evidence establishing the

respondent’s prima facie eligibility to pursue adjustment of

status in conjunction with a 212(c) waiver for the 1988 drug

conviction[.] Furthermore, as the Immigration Judge noted, the

record contains evidence indicating that the respondent may

have a recent (1998) aggravated felony conviction, which would

not qualify for a section 212(c) waiver[.] In addition, we believe

it would be inconsistent with the purpose of 8 C.F.R. §

1003.44(k) to allow the respondent to collaterally attack his

prior removal in circumstances where the regulation would bar

reopening of that same proceeding[.]

On whole, the record supports the Immigration Judge’s

resolution. Accordingly, we will enter the following order.

ORDER: The respondent’s appeal is dismissed. 

(Id. (internal citations & footnotes omitted)) Drummond’s application for

reconsideration was denied by the Board of Immigration Appeals on October

18, 2005. (Doc. 15, Exhibit 9)

The respondent argues in his motion to reconsider that

the Board erred in finding that he was ineligible for cancellation

of removal under section 240A of the Immigration and

Nationality Act, 8 U.S.C. § 1229b. The respondent argues that

even though his period of continuous residence in the United

States ended on April 22, 1988, the day he pled guilty to and

was convicted of the Texas offense of unlawful possession of a

Case 2:06-cv-00503-BH-C Document 21 Filed 03/28/07 Page 5 of 15
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controlled substance, cocaine, more than 7 years have elapsed

from the date he committed his crime and the issuance date of

the Notice to Appear.

However, in Matter of Mendino-Sandino, 22 I&N 1236

(BIA 2000), the Board held that pursuant to section 240A(d)(1)

of the Act, an alien may not accrue the requisite 7 years of

continuous physical presence for suspension of deportation after

the service of the Order to Show Cause and Notice of Hearing

(Form I-221), as service of the Order to Show Cause ends

continuous physical presence. Even though Matter of MendinoSandino, supra, involved an application for suspension of

deportation, we conclude that it also applies to aliens in removal

proceedings seeking cancellation of removal. Based upon our

decision in Matter of Mendino-Sandino, supra, we find that the

respondent cannot prove that he has resided in the United States

continuously for 7 years after having been admitted in any

status. He is therefore ineligible for cancellation of removal.

The respondent argues in his motion that he is eligible to

seek a section 212(c) waiver of inadmissibility because he is 

prima facie eligible for adjustment of status consideration. The

respondent has not, however, provided to the Board a copy of an

approved visa petition filed on his behalf. In the absence of

such, we cannot find that he is prima facie eligible to adjust his

status to a lawful permanent resident of the United States. In

addition, as mentioned in our August 1, 2005, decision, the

respondent’s December 2, 1992, conviction of the New York

offense of criminal possession of a weapon in the third degree

precludes him from section 212(c) consideration as relief from

removal.

The respondent further argued in an amendment to his

original motion to reconsider that the DHS is barred based upon

res judicata for placing him in removal proceedings since he was

already removed from the United States on account of his

criminal convictions. We disagree. The respondent was properly

removed from the United States by the DHS. That agency has

Case 2:06-cv-00503-BH-C Document 21 Filed 03/28/07 Page 6 of 15
7

the legal responsibility to ensure that only those who are

lawfully entitled to be in this country are able to do so. The

decision of the DHS to seek the respondent’s removal after his

reentry was proper, and was proceeded upon within the

framework of the law. This aspect of the motion is denied. The

DHS is also not obligated to reinstate the prior removal order,

and may in its prosecutorial discretion initiate these instant

proceedings. See Matter of G-N-C, 22 I&N Dec. 281 (BIA

1998).

(Id.) 

5. “On September 1, 2005, a Petition for Review along with a Stay

of Removal filed with the Second Circuit Court of Appeals, Southern District

in New York, were both granted. On October 12, 2006 both the Petition for

Review and the Stay of Removal were denied by the Second Circuit Court of

Appeals.” (Doc. 15, Exhibit 2, at 1; see also Doc. 11, Attached Second Circuit

Order Dated October 12, 2006 (“IT IS HEREBY ORDERED that petitioner’s

motion to stay removal is DENIED.”); Doc. 19, Attached October 13, 2006

Mandate of Second Circuit (“Petitioner, pro se, moves for assignment of

counsel an in forma pauperis status. Upon due consideration, it is ORDERED

that the motions are DENIED because Petitioner has not demonstrated that the

appeal has ‘likely merit.’ . . . It is further ORDERED that all other pending

motions are denied as moot and the appeal is DISMISSED because it lacks an

arguable basis in fact or law.”))

Case 2:06-cv-00503-BH-C Document 21 Filed 03/28/07 Page 7 of 15
8

6. Drummond filed an application for stay of deportation or

removal with the Department of Homeland Security on November 6, 2006.

(Doc. 15, Exhibit 1) On December 7, 2006, the U.S. Immigration and Customs

Enforcement (“ICE”) arm of the Department of Homeland Security denied

Drummond’s application. (Doc. 15, Exhibit 2, at 1-2 (“You listed the

following as reasons why you filed for the Stay of Deportation or Removal

form G-246 on November 6th, 2006: (1) justifiable existence, legal reasons to

grant you such relief, (b) your Constitutional and Civil Rights were violated

throughout these proceedings, (c) humanitarian and family reunification

purposes, and (d) pending decision on your case that is currently pending

before the U.S. District Court, Southern District of Alabama as being the

reasons why you filed for the ‘Stay of Deportation or Removal’. All the

reasons you have stated above were all presented and heard before such U.S.

Courts also listed above. As such, your application for Stay of Deportation or

Removal is hereby denied. With no stay in effect, Immigration and Customs

Enforcement is in the process of effecting your removal from the United States

to Jamaica as previously ordered.”))

7. Drummond filed his petition seeking habeas corpus relief,

pursuant to 28 U.S.C. § 2241, in this Court on August 28, 2006. (Doc. 1, at 1

Case 2:06-cv-00503-BH-C Document 21 Filed 03/28/07 Page 8 of 15
9

(“This litigation is submitted in good faith and its inquiry is singularly

constrained to petitioner’s eligibility for IMMEDIATE RELEASE from

detention.”))

CONCLUSIONS OF LAW

1. In Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 2498,

150 L.Ed.2d 653 (2001), the Supreme Court determined that “§ 2241 habeas

corpus proceedings remain available as a forum for statutory and constitutional

challenges to post-removal-period detention.” 

2. In Zadvydas, the Supreme Court held that the post-removalperiod detention statute, 8 U.S.C. § 1231, “read in light of the Constitution’s

demands, limits an alien’s post-removal-period detention to a period

reasonably necessary to bring about that alien’s removal from the United

States. It does not permit indefinite detention.” 533 U.S. at 689, 121 S.Ct. at

2498. 

3. 8 U.S.C. § 1231 reads, in relevant part, as follows:

(a) Detention, release, and removal of aliens ordered

removed

(1) Removal period

(A) In general

Except as otherwise provided in this section, when

Case 2:06-cv-00503-BH-C Document 21 Filed 03/28/07 Page 9 of 15
10

an alien is ordered removed, the Attorney General shall

remove the alien from the United States within a period

of 90 days (in this section referred to as the “removal

period”).

(B) Beginning of period

 The removal period begins on the latest of the

following:

(i) The date the order of removal

becomes administratively final.

(ii) If the removal order is judicially

reviewed and if a court orders a stay of the

removal of the alien, the date of the court’s final

order.

(iii) If the alien is detained or confined

(except under an immigration process), the date

the alien is released from detention or

confinement.

(C) Suspension of period

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.

(2) Detention

During the removal period, the Attorney General

shall detain the alien. Under no circumstances during the

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removal period shall the Attorney General release an

alien who has been found inadmissible under section

1182(a)(2) or 1182(a)(3)(B) of this title or deportable

under section 1227(a)(2) or 1227(a)(4)(B) of this title.

Id. (emphasis supplied). The Supreme Court in Zadvydas concluded that six

months represents a presumptively reasonable period of time to detain a

removable alien awaiting deportation pursuant to the provisions of this statute.

533 U.S. at 701, 121 S.Ct. at 2505 (“While an argument can be made for

confining any presumption to 90 days, we doubt that when Congress shortened

the removal period to 90 days in 1996 it believed that all reasonably

foreseeable removals could be accomplished in that time. We do have reason

to believe, however, that Congress previously doubted the constitutionality of

detention for more than six months. . . . Consequently, for the sake of uniform

administration in the federal courts, we recognize that period. After this 6-

month period, once the alien provides good reason to believe that there is no

significant likelihood of removal in the reasonably foreseeable future, the

Government must respond with evidence sufficient to rebut that showing. And

for detention to remain reasonable, as the period of prior postremoval

confinement grows, what counts as the ‘reasonably foreseeable future’

conversely would have to shrink. This 6-month presumption, of course, does

not mean that every alien not removed must be released after six months. To

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the contrary, an alien may be held in confinement until it has been determined

that there is no significant likelihood of removal in the reasonably foreseeable

future.”); see Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002)

(“Although not expressly stated, the Supreme Court appears to view the sixmonth period to include the 90-day removal period plus 90 days thereafter.”).

4. In Akinwale, the Eleventh Circuit determined that the six-month

detention period recognized by the Supreme Court “must have expired” at the

time a petitioner’s § 2241 petition is filed “in order to state a claim under

Zadvydas.” 287 F.3d at 1052; see also id. (“[I]n order to state a claim under

Zadvydas the alien not only must show post-removal order detention in excess

of six months but also must provide evidence of a good reason to believe that

there is no significant likelihood of removal in the reasonably foreseeable

future.”). The Akinwale court also indicated that the running of the six-month

detention period can be interrupted or tolled by the alien moving for a stay of

deportation/removal and any subsequent action of the appropriate circuit court

in granting such motion. See id., n.4 (“Akinwale was taken into custody on

November 17, 1999, and interrupted the running of time under Zadvydas by

moving on December 3, 1999, for a stay of deportation in his prior appeal to

this Court. The stay was granted on January 10, 2000. . . . Akinwale

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13

subsequently filed the § 2241 petition in this case on March 21, 2000. Thus,

Akinwale, unlike the aliens in Zadvydas, chose to simultaneously challenge

issues related to his removal order and his post-removal period detention. . .

. Therefore, Akinwale did not have even an unencumbered month of detention

prior to filing his § 2241 petition, let alone the requisite six months.”).

5. In this case, Drummond has filed his § 2241 petition

prematurely. Petitioner’s filing date in this instant action, August 28, 2006

(Doc. 1), came approximately forty-five (45) days prior to the date--October

12, 2006-- the Second Circuit Court of Appeals issued its order denying

Drummond’s stay of removal and petition for review. Therefore, in accordance

with Zadvydas and Akinwale, Drummond had no period of detention prior to

the filing of his § 2241 petition that can be counted toward the six-month postremoval-period of detention recognized as presumptively reasonable by the

Supreme Court. In other words, not only had the six-month period not expired

prior to the filing of the instant petition, it will not expire until April 10, 2007;

thus, petitioner has not stated a claim for relief under 28 U.S.C. § 2241 and

Zadvydas.

CONCLUSION

For these reasons, the undersigned recommends that this Court dismiss,

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14

without prejudice, Wade Drummond’s habeas corpus petition filed pursuant

to 28 U.S.C. § 2241. Drummond’s petition has been prematurely filed under

8 U.S.C. § 1231. The dismissal is without prejudice to petitioner’s ability to

file a new § 2241 petition in the future, and in the appropriate court, when he

is able to state a claim under Zadvydas.

The attached sheet contains important information regarding objections

to the report and recommendation of the Magistrate Judge.

DONE this the 27th day of March, 2007.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must,

within ten days of the date of service of this document, file specific written objections with

the Clerk of this court. Failure to do so will bar a de novo determination by the district

judge of anything in the recommendation and will bar an attack, on appeal, of the factual

findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en

banc). The procedure for challenging the findings and recommendations of the Magistrate

Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in

a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A),

by filing a ‘Statement of Objection to Magistrate Judge’s Recommendation’

within ten days after being served with a copy of the recommendation,

unless a different time is established by order. The statement of objection

shall specify those portions of the recommendation to which objection is

made and the basis for the objection. The objecting party shall submit to

the district judge, at the time of filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It is insufficient to

submit only a copy of the original brief submitted to the magistrate judge,

although a copy of the original brief may be submitted or referred to and

incorporated into the brief in support of the objection. Failure to submit a

brief in support of the objection may be deemed an abandonment of the

objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals;

only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C.

§ 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original

records in this case are adequate for purposes of review. Any party planning to object to this

recommendation, but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the United States will pay the

cost of the transcript.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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