UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Francis Wilson Mezan, Petitioner Case No. 19-cv-816-SM v. Opinion No.

U.S. Department of Homeland Security, Acting Secretary Kevin K. McAleenan; Immigration and Customs Enforcement, Acting Field Office Director Marcos Charles; and Strafford County Department of Corrections, Superintendent Christopher Brackett, Respondents

O R D E R

Before the court is Francis Wilson Mezan’s petition for a

writ of habeas corpus under

(document no. 1),

which petitioner filed while being held at the Strafford County

Department of Corrections (“SCDC”), in the custody of

Immigration and Customs Enforcement (“ICE”). Mezan requests

release or, in the alternative, an immediate bond hearing. For

the reasons that follow, Mezan’s petition is denied without

prejudice.

BACKGROUND

Mezan was born in Khartoum, Sudan, in 1990. When he was

nine years old, his father was killed, and his mother was

kidnapped, detained, and beaten. Mezan’s parents were

purportedly targeted by the Sudanese government because of his father’s work for a Christian aid organization, the family’s

Christian religion, and imputed anti-government political

opinions. Mezan and his family fled Sudan, living as refugees

in Egypt until Mezan was admitted to the United States in 2007,

settling in Maine. Mezan did not adjust his status to that of

lawful permanent resident; he remained a refugee.

In August, 2011, Mezan was convicted in the Superior Court

of Portland, Maine, for the offenses of criminal threatening

with a firearm, and criminal threatening with a dangerous

weapon. As a result of his convictions, on September 22, 2011,

ICE charged Mezan with removability under

(a)(2).

Mezan applied for adjustment of status and a refugee waiver, as

well as asylum, and sought withholding and deferral of removal

under the Convention Against Torture (“CAT”). An immigration

judge (“IJ”) denied substantive relief, but deferred removal to

Sudan under the CAT. Mezan’s order of removal became final on

August 27, 2012, after exhaustion of his appeal.

Mezan was released from custody in March of 2012. In

September and November of 2018, Mezan was convicted of several

crimes, including: assault, driving while intoxicated, unlawful

possession of a controlled substance, multiple probation

violations, and failure to provide his correct name, address and

date of birth. 2 As a result of Mezan’s continued criminal activity, his

case again came to ICE’s attention. ICE determined that Mezan’s

parents were born in what is now the Republic of South Sudan

(which gained independence from the Sudan in 2011). Because

Mezan’s parents were born in South Sudan, ICE reasoned that

Mezan is likely a South Sudanese citizen. Accordingly, on

November 29, 2018, ICE arrested Mezan so that South Sudanese

officials could interview him to determine whether Mezan is, in

fact, a citizen of South Sudan, and to decide whether to issue

him a travel document. Since November 29, 2018, Mezan has been

detained at the Strafford County Department of Corrections in

Dover, New Hampshire.

On or about November 28, 2018, ICE provided Mezan with a

Notice to Alien of File Custody Review, which stated that ICE

would conduct his custody review on or about February 27, 2019,

and that he could submit documentation to ICE in support of his

release prior to that date. On December 4, 2018, ICE gave Mezan

a Notice of Revocation of Release, which stated that ICE had

revoked his release because his case was under review by South

Sudan for issuance of a travel document that would allow ICE to

effect his order of removal.

On December 20, 2018, Mezan filed a motion to reopen his

removal proceedings with the Boston immigration court. He 3 sought to stop his removal to South Sudan, and to present

evidence that he was entitled to deferral relief under the CAT.

Mezan’s motion was denied on February 11, 2019. Mezan appealed

that denial, which appeal is currently pending before the Board

of Immigration Appeals (BIA).

In February of 2019, Mezan filed a habeas corpus petition

in this court. He sought to prevent his removal while he

pursued his motion to reopen the removal proceedings. See Mezan

v. DHS, et. al., 19-cv-000198-JL, U.S.D.C., D.N.H. (“Mezan I”).

In the course of that action, Mezan and the Government reached

an agreement. The Government agreed not to remove Mezan from

the United States prior to the BIA’s ruling on Mezan’s motion to

reopen his case, and Mezan filed a voluntary dismissal of the

petition. As part of that agreement, Mezan acknowledged that a

stay of removal would result in his continued detention. See

Gov. Mot. to Dismiss, Exh. B, ¶ 4 and Attachment 1 (Mar. 1,

2019, email from petitioner’s counsel stating, “we understand

that [Mezan] will not be released.”). The stipulated order of

dismissal was approved by the court on March 7, 2019.

On August 5, 2019, Mezan filed this habeas corpus petition,

in which he seeks an order of immediate release, or a bond

hearing. The Government objects, and has moved to dismiss his

Petition. 4 DISCUSSION

While this court’s jurisdiction over immigration cases is

curtailed by the REAL ID Act,

, the court may

still review habeas challenges to unlawful immigration

detention. See Aquilar v. U.S. Immigration & Customs

Enforcement Div. of Homeland Sec.,

(1st Cir.

2007) (“[D]istrict courts retain jurisdiction over challenges to

the legality of detention in the immigration context.”).

Petitioner claims habeas relief on the grounds that his current

post-removal detention is unlawful.

In support of his petition, Mezan argues that his continued

detention is prohibited by the Supreme Court’s holding in

Zadvydas v. Davis,

(2001), because he has been

detained for more than six months, and his actual removal date

is not reasonably foreseeable. Mezan says that he has raised

meritorious challenges to his removal before the BIA, and,

therefore, faces removal proceedings for an indefinite period of

time. He further argues that an in-person custody determination

must be provided under the due process clause, because he has

been detained for longer than six months. 1

1 In his petition, Mezan also argued that he was unlawfully re-detained, and that the Government revoked his order of supervision without notice and an opportunity to be heard, in violation of

and the Due Process Clause. He 5 The provisions of

(a)(6) apply to aliens,

like Mezan, who are subject to a final order of removal. 2 In

Zadvydas, the Supreme Court addressed constitutional limits upon

the duration of post-removal-period detention under Section

1231. Typically, when a final order of removal has been

entered, the Government “secures the alien’s removal during a

subsequent 90-day statutory ‘removal period,” during which time

the alien is normally held in custody.” Zadvydas,

. However, in circumstances where detention extends beyond

the 90-day statutory period, Section 1231(a)(6) provides that

the alien “may be detained” beyond the removal period. The

Supreme Court noted that indefinite mandatory detention

following the issuance of a removal order and expiration of the

removal period pursuant to § 1231(a)(6) would “raise serious

constitutional concerns,” id., and “construe[d] the statute to

contain an implicit ‘reasonable time’ limitation,” adopting six

months after entry of the final removal order as a

“presumptively reasonable period.” Id. at 682, 701. After that

six month period has passed, “once the alien provides good

reason to believe that there is no significant likelihood of

subsequently withdrew that claim. See Pet.’s Mem. in Opp. To Mot. to Dismiss at n.1.

2 Petitioner does not contend that

applies to his current detention. 6 removal in the reasonably foreseeable future, the Government

must respond with evidence sufficient to rebut that showing.”

Mezan has been detained for longer than six months.

Therefore, the first prong of Zadvydas is satisfied. At the

core of this dispute is whether Mezan’s removal date is

reasonably foreseeable. As previously noted, the parties agreed

in an earlier case that Mezan will not be removed from this

country pending resolution of his appeal of the IJ’s denial of

his motion to reopen. But, says the Government, because South

Sudan has agreed to accept Mezan, no obstacle exists to removing

him following resolution of that appeal.

According to the Government, that Mezan remains in

detention (rather than, presumably, residing in South Sudan) is

a matter of his own choice, as he has chosen to seek stays of

and challenge his removal. Mezan could readily agree to removal

now and be free but for the fact that the parties agreed he

would not be removed to South Sudan pending completion of his

BIA appeal. Mezan’s continued detention, the Government says,

is due to that agreement. Moreover, the Government argues,

Mezan has a criminal record, and, therefore, may be detained

beyond the 90-day removal period, under the provisions of

(a)(6). 7 In response, Mezan argues that the Government cannot

lawfully remove him to South Sudan, where, he contends, he is

likely to be tortured, without first affording him the

opportunity to apply for relief from removal to that particular

country. Mezan concedes that this court is not the proper forum

in which to challenge the legality of his removal to South Sudan

(see pet.’s mem. in opp. at 8-9). But, he says, the point is

nevertheless relevant to his present habeas proceeding because

it bears on whether his removal date is reasonably foreseeable.

Because he has raised a strong challenge to his removal, he

says, it is not likely that he will be removed in the reasonably

foreseeable future.

This case is not like Zadvydas, in that, unlike the

petitioners in Zadvydas, Mezan’s detention has a definite and

certain end. In Zadvydas, the petitioners were in “removable-

but-unremovable limbo,” Jama v. Immigration & Customs Enf't,

(2005), either because the petitioners’ country

was unwilling to accept them, or because the United States did

not have an extradition treaty with the petitioners’ receiving

countries. Zadvydas,

. Here, South Sudan

has issued Mezan a travel permit, which, although now since

expired, demonstrates its willingness to accept Mezan. Indeed,

the government represents that it is in the process of obtaining

8 an updated travel permit. See Document No. 9-1 at ¶ 32. So,

pending resolution of his appeal, Mezan will definitely be

released from detention, either to remain in the United States,

or to be removed to South Sudan. The delay in his removal is a

function of his desire to remain and the government’s agreement

not to remove (pursuant to which Mezan understood “he [would]

not be released”), pending the outcome of his BIA appeal.

As the Supreme Court wrote in Zadvydas,

,

the six-month “presumption, of course, 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.” In contrast to the

petitioners in Zadvydas, Mezan is not “condemned to an

indefinite term of imprisonment within the United States.”

. The delay here is attributable to Mezan’s efforts to

reverse the removal order, and the government’s indulgence.

Mezan is certainly entitled to pursue that relief, but his claim

that those efforts necessarily render his detention “indefinite”

are not persuasive.

Mezan has not shown that there is no likelihood of his

removal in the reasonably foreseeable future. Therefore,

Mezan’s detention remains statutorily authorized, and his 9 petition will be dismissed, but without prejudice. Petitioner’s

circumstances may change. Therefore, in the event that he can

make a showing that there is no significant likelihood of

removal in the reasonably foreseeable future (or if he faces

imminent removal and has a basis upon which to seek habeas

relief), Mezan may file a new § 2241 petition.

CONCLUSION

For the reasons set forth above and in the government’s

objection to Mezan’s petition (documents no. 9, 13), the court

finds that Mezan has not satisfied his obligation to show that

his removal is not likely in the reasonably foreseeable future.

Accordingly, his petition for a writ of habeas corpus is DENIED

without prejudice.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

October 1, 2019

cc: All counsel of record

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