United States District Court, E.D. Wisconsin
YOUSEF A. GILALI, Petitioner,
WARDEN OF McHENRY COUNTY JAIL, Respondent.
DECISION AND ORDER GRANTING PETITION FOR WRIT OF
JOSEPH United States Magistrate Judge.
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.
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.
entered the United States without inspection at an unknown
place and time. (Declaration of Michael Landmeier
(“Landmeier Decl.”) ¶ 6, Docket #
11-1.) 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. ¶
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.)
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.
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.)
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.
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.)
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.)
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.
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 ...