United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DISMISSING CASE
JOSEPH UNITED STATES MAGISTRATE JUDGE
Amponsah, a citizen of Ghana subject to a final order of
removal and currently detained at the Kenosha County
Detention Center pending actual removal, filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Amponsah alleges his continued detention beyond six months is
contrary to Zadvydas v. Davis, 533 U.S. 678 (2001). He seeks
a writ ordering his immediate release. For the reasons stated
below, the petition is denied.
history of Amponsah's immigration proceedings is taken
from documents Amponsah attached to his habeas petition and
from the declaration of Edgar Del Rivero, a Deportation
Officer for the Enforcement and Removal Office
(“ERO”), Immigration Customs Enforcement
(“ICE”), of the Department of Homeland Security.
Amponsah is a citizen of Ghana who last entered the United
States on or about January 19, 2017 as a non-immigrant.
(Docket # 1-1 at 1.) Amponsah requested asylum and was
detained at that time. (Declaration of Edgar Del Rivero
(“Del Rivero Decl.”) ¶ 5, Docket # 10-1.) On
February 7, 2017, Amponsah was served with a Notice to Appear
by U.S. Citizenship and Immigration Services. (Docket # 1-1
at 2.) On February 15, 2017, a warrant for arrest was issued,
stating that there was probable cause to believe that
Amponsah was removable from the United States based on the
pendency of ongoing removal proceedings against him.
(Id. at 4.)
notices for a hearing before an Immigration Judge were issued
in March and April 2017. (Id. at 7-9.) On March 22,
2017, Amponsah entered pleadings, admitting all of the
allegations on the charging document. (Del Rivero Decl.
¶ 6.) An Immigration Judge sustained the charge of
removability, in that Amponsah was an immigrant who at the
time of application for admission was not in possession of
any valid unexpired entry document. (Id.) Amponsah
filed an application for asylum on April 12, 2017 and his
case was scheduled for a final hearing to be held on June 15,
2017. (Del Rivero Decl. ¶ 7, Docket # 1-1 at 9.)
15, 2017, a hearing was held on Amponsah's applications
for asylum, withholding of removal, and protection under the
Convention Against Torture. The Immigration Judge denied his
applications and ordered him removed to Ghana. Amponsah
waived his appeal. (Del Rivero Decl. ¶ 8, Docket # 1-1
at 5-6.) On July 6, 2017, a travel document request packet
was sent to the Embassy of Ghana in Washington, D.C. (Del
Rivero Decl. ¶ 11.) Amponsah filed a motion to
reconsider the Immigration Judge's decision, requesting
that additional documentation be considered in his case. The
motion was granted on August 29, 2017. (Id. ¶
letter dated September 7, 2017, Amponsah was informed that
his custody status was reviewed and it was determined that he
would not be released from ICE custody. (Docket # 1-1 at 2.)
Amponsah was told that a travel document was requested from
Ghana and the request was currently pending. (Id.)
Amponsah was interviewed by the Ghanaian Consulate on
September 22, 2017 and emails were subsequently sent to the
Ghanaian Embassy regarding the status of a travel document.
(Del Rivero Decl. ¶ 11.)
hearing was held on November 9, 2017, where the Immigration
Judge considered Amponsah's additional documentation.
(Id. ¶ 10.) While finding that the
documentation corroborated Amponsah's claim, the
Immigration Judge again denied his applications because he
did not demonstrate past persecution or fear of future
persecution on account of a protected ground. (Id.)
Amponsah's application for protection under the
Convention Against Torture was also denied for failure to
demonstrate a substantial risk that the government of Ghana
would torture or acquiesce to any torture of Amponsah.
(Id.) The Immigration Judge then ordered him removed
to Ghana and Amponsah waived his right to appeal the
Immigration Judge's decision, resulting in a final order
of removal. (Id.)
letter dated December 22, 2017, Amponsah was again informed
that ICE had reviewed his custody status and determined that
he would not be released from custody at that time. (Docket #
1-1 at 1.) The letter stated that ICE was currently working
with the Government of Ghana to secure a travel document for
Amponsah's removal from the United States and that a
travel document was expected. (Id.) Amponsah was
accepted on a Ghana/Liberia charter flight scheduled to
depart on March 12, 2018. (Del Rivero Decl. ¶ 12.)
Although Amponsah departed on that flight, the Ghanaian
Embassy did not issue a travel document in time and Amponsah
was returned to Chicago, Illinois on March 16, 2018.
Rivero avers that while Amponsah remains in custody, the ERO
is actively in contact with the Embassy of Ghana for issuance
of a travel document and has no reason to believe that Ghana
will decline to issue one. (Id. ¶ 13.) Amponsah
filed a letter on May 24, 2018 stating that he had not yet
received his travel documents and had not heard anything
since March 12, 2018. (Docket # 13.)
federal court may grant habeas relief to a detainee who
“is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. §
2241(a), (c)(3). In determining whether to grant such relief,
the court may consider affidavits and documentary evidence
such as records from any underlying proceeding. §§
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).
Zadvydas v. Davis, 533 U.S. 678, 682 (2001) (emphasis in
original), 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 ...