Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Onyango v. Sessions

United States District Court, E.D. Wisconsin

November 17, 2017

ALLAN WASONGA ONYANGO, Petitioner,
v.
JEFF SESSIONS, ELAINE C. DUKE, RICARDO WONG, and DALE SCHMIDT, Respondents.

          ORDER

          J. P. STADTMUELLER, U.S. DISTRICT JUDGE.

         On November 3, 2017, Allan Wasonga Onyango (“Onyango”), a state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his detention in connection with removal proceedings. (Docket #1). As an initial matter, the Court must screen Onyango's motion under Rule 4 of the Rules Governing Section 2254 Proceedings, which requires the Court to promptly examine the motion and dismiss it “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the petitioner is not entitled to relief.”[1]

         1. FACTS AND PROCEDURAL HISTORY

         Onyango is a native and citizen of Kenya. He came to the United States in 2006 to attend college in Michigan. In 2010, he was convicted of using a false document and misdemeanor assault. He was taken into custody by U.S. Immigration and Customs Enforcement (“ICE”) after his release from custody on those convictions.

         Removal proceedings were initiated against Onyango. He did not oppose removal but sought relief therefrom under the Convention Against Torture. His request was denied at all levels of review. However, rather than being removed, Onyango was released from ICE custody under an order of supervision in 2012.

         Then, on April 17, 2017, ICE issued Onyango a notice of revocation of his release and took him back into custody. He was interviewed on April 27, 2017, after which the reviewing official determined that detention should continue. A written decision continuing his review further was issued on July 26, 2017. The order stated that travel documents required for him to be removed to Kenya had been requested and were “expected.”

         On October 26, 2017, ICE issued another written decision to continue his detention. Again, the order stated that ICE expected to receive necessary travel documents from the government of Kenya. However, the order did not say whether ICE had actually contacted the Kenyan government about him or whether it had received any information from the Kenyan government about the status of those travel documents.

         To Onyango's knowledge, and despite his continued cooperation with efforts to remove him to Kenya-including requesting travel documents from Kenya himself, surrendering his own identification documents, and providing ICE with his fingerprints-the Kenyan government still has not issued travel documents for him, and ICE has given no indication that those documents will be forthcoming in the reasonably foreseeable future. He remains detained at the Dodge County Detention Center in Juneau, Wisconsin. He requests that the Court order his immediate release from custody and placement on supervision pending his removal.

         2. LEGAL STANDARDS

         An alien ordered removed from this country generally must be removed within ninety days. 8 U.S.C. § 1231(a)(1)(A). This is called the “removal period.” Id. During that period, the alien must be detained. Id. § 1231(a)(2). If not removed within the removal period, the alien is normally to be released under the government's supervision. Id. § 1231(a)(3). However, the Attorney General may continue to detain him beyond the removal period if the alien presents a risk to the community or is unlikely to comply with the order of removal. Id. § 1231(a)(6).

         In Zadvydas v. Davis, 533 U.S. 678, 682 (2001), the Supreme Court addressed “whether [the] post-removal-period statute authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien's removal.” The Court determined that the latter was the appropriate standard. Id. at 689. To find that the statute permitted indefinite detention would, in the Court's view, raise serious due process concerns. Id. at 690. Although the text of the statute says nothing about reasonableness, the Court read that limitation into it to avoid a collision with the Constitution. See Id. at 690-98.

         Thus, the Court concluded that “once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute.” Id. at 699. In such a case, “the alien's release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and the alien may no doubt be returned to custody upon a violation of those conditions.” Id. at 699-700. Further, if removal is reasonably foreseeable, “the habeas court should consider the risk of the alien's committing further crimes as a factor potentially justifying confinement within that reasonable removal period.” Id. at 700.

         To provide clarity to later courts, the Court specified that a presumptively reasonable period of detention for purposes of removal should not exceed six months. Id. at 701. Once that period expires, and 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.” Id. The alien need not show “the absence of any prospect of removal-no matter how unlikely or unforeseeable, ” but merely that removal is not reasonably foreseeable. Id. at 702. Similarly, the government cannot rest solely on assertions of good-faith efforts to secure removal. Id. As the period of post-removal confinement grows, “what counts as the ‘reasonably foreseeable future' conversely would have to shrink.” Id. at 701. However, the six-month presumption “does not mean that every alien not removed must be released after six months. To 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.” Id.

         3. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.