United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
Nana Yaw Amo, who is a citizen of an unidentified foreign
country and is currently detained at the Kenosha County
Detention Center by Immigration and Customs Enforcement
(ICE), filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 on December 18, 2018, challenging
his continued detention during the course of his removal
proceedings. Amo contends that his continued detention is a
violation of due process and that he should be released on
supervision to allow him to seek proper medical care for
injuries he sustained while in custody.
detention by Immigration & Customs Enforcement (ICE)
began on August 19, 2017. Amo was detained for overstaying
his F-1 student visa. He has been in the country for the past
ten years. Amo had a bond hearing before an Immigration Judge
in September of 2017 where he was refused bond because of his
prior DUIs. Amo states he has been arrested four times in
Illinois for driving under the influence. Two have been
expunged, and the most recent one is pending. In November of
2017, Amo's wife, who is a U.S. citizen, filed an I-130
petition to establish her relationship with Amo to help in
his immigration proceedings and a hearing was held. The
Immigration Judge granted a continuance to allow the United
States Citizenship and Immigration Services (USCIS) time to
review the I-130 petition.
USCIS interviewed Amo's wife in March of 2018, it sent a
letter of intent to deny the petition on the ground that it
did not receive certain items of evidence. The case was
reopened in September of 2018 after Amo submitted evidence
that USCIS had in fact received the items it claimed not to
have received. USCIS then reviewed the I-130 petition once
more and again denied it.
Amo's next hearing before the Immigration Judge, where he
was represented by a new attorney, the Immigration Judge
declined to grant a continuance of the case to allow Amo to
file for other relief, such as cancellation of removal, and
informed Amo that his rights to file for any other relief was
already waived by his previous attorney. The Immigration
Judge issued an order of removal on October 1, 2018, that Amo
appealed. As of the date of this order, Amo's appeal is
pending before the Board of Immigration Appeals.
also alleges in his petition that while in custody at the
Kenosha County Detention Center, he slipped and fell on a wet
floor, injuring his fingers and shoulder. Amo claims that his
complaints regarding his injuries have been ignored and that
his injuries have worsened due to the deliberate indifference
of ICE to his injuries and the lack of treatment while he has
been in custody.
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. §§
2246-47. A pro se pleading is held to less stringent
standards than more formal pleadings drafted by lawyers.
See Estelle v. Gamble, 429 U.S. 97, 106 (1976);
Haines v. Kerner, 404 U.S. 519, 520 (1972).
U.S.C. § 1226, “an alien may be arrested and
detained pending a decision on whether the alien is to be
removed from the United States.” Given the fact that
Amo was given a bond hearing when he was initially detained,
it appears that he is being detained pursuant to 8 U.S.C.
§ 1226(a). Under that portion of the statute, the
Attorney General “may continue to detain the arrested
alien” during the pendency of the determination of
removability and may release the alien on bond or conditional
parole. § 1226(a)(1)-(2). It has been the Supreme
Court's longstanding view that “the Government may
constitutionally detain deportable aliens during the limited
period necessary for their removal proceedings.”
Demore v. Kim, 538 U.S. 510, 526 (2003). “When
the Government deals with deportable aliens, the Due Process
Clause does not require it to employ the least burdensome
means to accomplish its goal.” Id. at 258.
argues that his continued detention is a violation of due
process. Specifically, Amo argues that there is no
sufficiently strong special justification for ICE to impose
indefinite civil detention on detainees. “Aliens are
entitled to due process under the Fifth Amendment during the
course of deportation proceedings.” Al-Siddiqi v.
Nehls, 521 F.Supp.2d 870, 877 (E.D. Wis. 2007),
aff'd 531 F.3d 490 (7th Cir. 2008).
Amo asserts that his detention is indefinite, detention
pending a determination of removability has an obvious
termination point and is not indefinite. See Zadvydas v.
Davis, 533 U.S. 678, 697 (2001); Demore, 538
U.S. at 529 (comparing post-removal-period detention to
detention pending a determination of removability). An alien
will either be ordered removed or released upon the
completion of the removal proceedings.
the sufficiency of ICE's justification, the Supreme Court
“has recognized detention during deportation
proceedings as a constitutionally valid aspect of the
deportation process.” Demore, 538 U.S. at 523.
In addition, according to his petition, Amo has been afforded
the opportunity to challenge his custodial status at a bond
hearing in September of 2017, at which bond was denied. The
denial of Amo's release on bond “is closely
tailored to achieve the government's legitimate concerns
of preventing flight during removal proceedings and of
ensuring removal if ordered.” Ali v. Achim,
342 F.Supp.2d 769, 774 (N.D. Ill. 2004); see Kim,
538 U.S. at 531. Because Amo “does not have a protected
liberty interest to remain in this country that outweighs the
Government's objective in detaining him to ensure
removal, ” his detention is constitutional.
Ali, 342 F.Supp. at 774. Although Amo's
protracted detention continues, it is entirely due to his
decision to appeal the Immigration Judge's decision
ordering him removed to the BIA. Once his appeal is resolved,
he will either be removed to his home country or released.
also contends that his detention has exceeded the 90-day
period that the government has to remove him after the order
of removal was entered on October 1, 2018. It is only after a
removal order becomes final, however, that the alien's
removal period begin. The removal period starts on the latest
of the following (1) the date when the order of removal
issued by an Immigration Judge becomes administratively final
(that is, appeal to the Board of Immigration Appeals was
either taken and denied or the time to file an appeal
expired); or (2) if the removal order is judicially reviewed
and the court orders a stay of the removal of the alien, the
date of the court's final order; or (3) if the alien is
detained or confined (except under an immigration process),
the date the alien is released from detention or confinement.
8 U.S.C. § 1231(a)(1)(B)(i)-(iii). Once the removal
period starts does the government have ninety days to remove
an alien. Even then, the government may further detain an