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Gilali v. Warden of McHenry County Jail

United States District Court, E.D. Wisconsin

October 15, 2019

YOUSEF A. GILALI, Petitioner,
v.
WARDEN OF McHENRY COUNTY JAIL,[1] Respondent.

          DECISION AND ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

          NANCY JOSEPH United States Magistrate Judge.

         Yousef A. Gilali, who is subject to a final order of removal and is currently detained at the McHenry County Jail pending actual removal, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Gilali 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 granted.

         BACKGROUND

         As an initial matter, at the time of filing this habeas petition, Gilali was detained at the Dodge County Detention Facility located in Juneau, Wisconsin. (Habeas Petition ¶ 1, Docket # 1.) Gilali was subsequently transferred to the McHenry County Jail in Woodstock, Illinois. (Docket # 3.) The respondent asserts that the court “may also consider whether this habeas petition is properly transferred on venue grounds to the Northern District of Illinois as the petitioner is no longer detained within the Eastern District of Wisconsin.” (Resp. Br. at 1 n.2, Docket # 11.) Because a prisoner transferred while litigation is pending need not re-file in the new district, Moore v. Olson, 368 F.3d 757, 758 (7th Cir. 2004), and Gilali was detained within the Eastern District of Wisconsin at the time his petition was filed, venue is proper in this district and I will not transfer Gilali's case to the Northern District of Illinois.

         Gilali entered the United States without inspection at an unknown place and time. (Declaration of Michael Landmeier (“Landmeier Decl.”) ¶ 6, Docket # 11-1.)[2] While Gilali asserts that he is a native and citizen of Morocco (Habeas Petition ¶ 6), the respondent states that Gilali's country of citizenship is unknown and Gilali has claimed to be a citizen of Libya, Morocco, and Iraq at various times (Landmeier Decl. ¶ 7).

         On or about December 4, 1989, Gilali was ordered deported to Libya by an Immigration Judge in Buffalo, New York. (Landmeier Decl. ¶ 8.) The Immigration and Naturalization Service (the predecessor of DHS), was unable to obtain a travel document to Libya on Gilali's behalf. (Id. ¶ 9.) Thus, Gilali was released on an Order of Supervision on or about April 6, 1990. (Id.) On or about October 2, 2007, Gilali was taken into DHS custody pursuant to a detainer after he was arrested in Wisconsin for an unknown offense. (Id. ¶ 11.) On or about March 26, 2008, Gilali was again released on an Order of Supervision because DHS was unable to obtain a travel document on his behalf. (Id. ¶ 12.)

         Gilali was again taken into DHS custody on March 29, 2011 after he was arrested in Wisconsin for a probation violation. (Id. ¶ 13.) Gilali was again released on an Order of Supervision on May 4, 2011 because DHS was unable to obtain a travel document for him. (Id. ¶ 14.) After facing criminal charges in 2016 and 2017, Gilali was again taken into DHS custody on or about November 2, 2017. (Id. ¶¶ 15-19.) The respondent asserts that ERO began actively seeking a travel document from Morocco and Libya after Gilali was taken into custody and on January 29, 2018, the ERO determined that Gilali would remain in custody while travel arrangements were made. (Id. ¶¶ 20-21.)

         However, on or about February 2, 2018, the Libyan Consulate advised that it would not issue a travel document for Gilali because he was not a Libyan citizen. (Id. ¶ 22.) The Consulate advised ERO that Gilali's accent was Moroccan. (Id.) On June 12, 2018, ERO again determined that Gilali would remain in custody pending travel arrangements. (Id. ¶ 23.) On or about September 18, 2018, Gilali was interviewed by the Moroccan Consulate. (Id. ¶ 24.) While the respondent asserts that the Consulate informed ERO that Gilali was evasive in his answers and requested that the Consulate decline to issue him a travel document (id.), Gilali denies these assertions (Petitioner's Reply Br. at 5, ¶ 14, Docket # 12). Gilali argues that since his November 2017 detention, he has “availed himself multiple times at the Chicago field office for interviews with the deportation officer and has willingly offered information that he is from Morocco, the city of Casablanca.” (Id.)

         On or about September 18, 2018, ERO served Gilali with a Failure to Comply notice, stating that he failed to cooperate in obtaining a travel document. (Landmeier Decl. ¶ 25; Ex. C to Habeas Petition, Docket # 1-1 at 12.) On or about September 25, 2018, Gilali was served with a memo notifying him of his continued detention. (Landmeier Decl. ¶ 26.) Gilali then informed ERO that his father was born in Iraq. (Id.)

         The respondent avers that on or about November 21, 2018, Gilali was again interviewed by the Moroccan Consulate and gave the Consulate false information- specifically, that he had a green card-and otherwise was uncooperative and declined to answer questions. (Id. ¶ 27.) Thus, the Consulate was unable to verify Gilali's citizenship at that time. (Id.) Gilali contests this assertion, stating that he truthfully told the consulate officer that he had been given a work permit that he had renewed annually since his removal order in 1989. (Petitioner's Reply Br. at 10, ¶ 20.) Gilali asserts that the DHS/ICE officer present at the interview knew about his work permit and could have corrected any misunderstanding on the part of the consulate officer. (Id.)

         Gilali was subsequently served with Failure to Comply notices on January 7, 2019, February 4, 2019, March 25, 2019, April 19, 2019, and June 6, 2019. (Landmeier Decl. ¶ 28; Ex. C to Habeas Petition.) The respondent asserts that as of August 19, 2019, the requests for Gilali's travel documents remain pending with the Moroccan and Iraqi Consulates. (Landmeier Decl. ¶ 29.) ERO continues to follow up with the Consulates on the status of these documents and Gilali has only recently agreed to assist in that process. (Id.) Gilali contests that he only recently began cooperating with the removal process, stating that he has been fully cooperative throughout the entire process. (Petitioner's Reply Br. at 13, ¶ 27.)

         I held a telephone conference with the parties on October 7, 2019. During the hearing, the respondent requested leave to provide an update as to the status of Gilali's travel documents. (Docket # 13.) On October 9, 2019, the respondent stated that ICE/ERO had informed counsel that it was initiating the process to release Gilali from detention. (Docket # 14.) However, on October 10, 2019, respondent clarified that ICE/ERO had only recommended that Gilali be released from detention pending removal and that ICE/ERO believed that the Moroccan Foreign Ministry would provide an answer within the next few days about whether it will issue Gilali travel documents. (Docket # 15.) Another telephone conference was held on October 15, 2019. (Docket # 16.) The respondent stated that a release recommendation was now in place; however, because Gilali is in a failure to comply status, the respondent would not concur with the release recommendation. (Id.) The respondent could not, however, provide a reason as to why Gilali was in a failure to comply status. (Id.)

         LEGAL STANDARD

         A 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 ...


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