UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Clement Sao Nyonton

v. Case No. 18-cv-481-PB Opinion No.

Christopher Brackett, Superintendent of Strafford County Department of Corrections et al.

ORDER

Clement Sao Nyonton, a foreign national, petitions this

court for a writ of habeas corpus. He challenges his

statutorily mandated detention, which has now exceeded fourteen

months, and requests an individualized bond hearing.

Because Nyonton’s claim is premature, I decline his request

for an immediate bond hearing without prejudice to his right to

renew his request if he continues to be detained after the

removal period specified in

(a)(2).

I. Background

A. Clement Nyonton

Clement Nyonton is a Liberian national who entered the

United States as a refugee in 2000. He has not left since. See

Doc. No. 31 at 4.

In 2008, Nyonton was convicted of possession of cocaine in

the state of Rhode Island and served his sentence there. See

Doc. No. 31 at 4. He was transferred to United States

1 Immigration and Customs Enforcement (“ICE”) custody upon his

release. See Doc. No. 31 at 4. While detained, Nyonton

received a “Notice to Appear” for a removal hearing stating that

he was to appear at a time and place “to be determined.”

Following Nyonton’s hearing, he was ordered removed as an alien

convicted of violating a controlled substance law pursuant to

§ 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act,

codified at

(a)(2)(A). The subsequent 90-day

“removal period” contemplated by

(a)(1)(A)

expired on December 28, 2009. Instead of removing Nyonton, ICE

at that point released him from custody on an order of

supervised release. See Doc. No. 31 at 4.

In 2017, Nyonton was convicted of forgery and

counterfeiting in Rhode Island. See Doc. No. 31 at 4. Upon his

release from state custody on November 9, 2017, ICE took Nyonton

into custody pending the execution of the prior removal order.

See Doc. No. 31 at 5. He has been in ICE custody since that

day.

On June 4 2018, Nyonton filed a pro se petition for a writ

of habeas corpus in this Court. See Doc. No. 1. He asserted

that he was entitled to an individualized bond hearing because

he had been detained more than six months after his removal

period ended and his deportation was not reasonably foreseeable.

2 See Doc. No. 1 at 2 (citing Zadvydas v. Davis,

(2001)).

While Nyonton’s habeas corpus petition was pending, an

immigration judge granted Nyonton’s motion to reopen his removal

proceeding because his “Notice to Appear” failed to designate

the specific time and place for the hearing. 1 That grant shifted

the statutory basis for his detention from

(a)(6)

(providing that an “alien ordered removed who is inadmissible

under section 1182 2 of this title . . . may be detained beyond

the removal period”) to

(c)(1)(A) (mandating that

“Attorney General shall take into custody any alien who is

inadmissible by reason of having committed any offense covered

in section 1182(a)(2)”).

On November 14, 2018, the immigration judge ordered Nyonton

removed to Liberia. Because he did not appeal that order, it

became final on December 14, 2018. See Doc. No. 30 at 2. When

the new removal order became final, Nyonton was brought under

1 The immigration judge based his ruling on the Supreme Court’s decision in Pereira v. Sessions,

(2018), which held that a “notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under section 1229(a)’ [of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996].”

2 Nyonton’s cocaine possession conviction rendered him inadmissible under § 1182(a)(2)(A) because he committed “a violation of . . . [a] law or regulation of a state . . . relating to a controlled substance.” See

(a)(2)(A).

3 the purview of § 1231(a)(2), which dictates that “[d]uring the

[90 day] removal period, the Attorney General shall detain the

alien” and that “[u]nder no circumstance during the removal

period shall the Attorney General release an alien who has been

found inadmissible under section 1182(a)(2).” See Doc. No. 30 at

2.

So far, Nyonton has been detained under § 1231(a)(6) for

slightly over seven months (from November 9, 2017 until July 16,

2018), detained under § 1226(c)(1)(A) for slightly under five

months (from July 16, 2018 until December 14, 2018), and

detained under § 1231(a)(2) for slightly under three months

(from December 14, 2018 until today). If he is detained after

March 14, 2019, when the removal period expires, the

justification for his detention will revert to § 1231(a)(6).

II. Detention and its limits

The Supreme Court has addressed challenges to two of the

mandatory detention provisions under which Nyonton has been

held. 3

In Zadvydas v. Davis,

(2001), the Supreme

Court observed that indefinite mandatory detention following the

issuance of a removal order and the expiration of the removal

3 Nyonton was originally detained pursuant to

(a)(6) (at issue in Zadvydas), then under § 1226(c)(1)(A) (at issue in Kim), and now under § 1231(a)(2).

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

constitutional concerns.” Id. at 682. It thus “construe[d] the

statute to contain an implicit “6-month presumption” of

reasonableness for continued detention pursuant to § 1231(a)(6),

after which, if an alien “provides good reason to believe that

there is no significant likelihood of removal in the reasonably

foreseeable future, the Government must respond with evidence

sufficient to rebut that showing.” Id. at 701. The Zadvydas

decision is based on statutory, not constitutional grounds.

Therefore, the court did not determine whether § 1231(a)(6)

conflicted with the Due Process Clause.

In Demore v. Kim,

(2003), a petitioner alleged

that the mandatory detention required by

(c)

“violated due process because the [government] had made no

determination that he posed either a danger to society or a

flight risk.” Id. at 514. The Court acknowledged that “the

Fifth Amendment entitles aliens to due process of law in

deportation proceedings.” Id. at 523 (citation omitted). It

concluded, however, that “Congress, justifiably concerned that

deportable criminal aliens who are not detained continue to

engage in crime and fail to appear for their removal hearings in

large numbers, may require that persons such as respondent be

detained for the brief period necessary for their removal

proceedings.” Id. at 513.

5 The provisions analyzed in Zadvydas and Kim are two of the

three mandatory detention provisions that the government has

relied on to detain Nyonton over the past fifteen months. This

case differs from both Zadvydas and Kim, however, because

Nyonton is still within the 90 day period for which detention is

mandatory pursuant to § 1231(a)(2).

III. Statutory limitations on detention

Section 1231(a)(2) is crystal clear. It provides, in

relevant part, that, “[d]uring the removal period, the Attorney

General shall detain the alien. Under no circumstance during

the removal period shall the Attorney General release an alien

who has been found inadmissible [for a controlled substance

violation] under section 1182(a)(2) . . . .”

(a)(2). The statute thus commands that “the Attorney

General shall detain the alien.” In even starker language,

Congress also ordered that individuals, such as Nyonton, who

have been found inadmissible because of a controlled substance

violation shall be released during the removal period “[u]nder

no circumstance.” The use of this mandatory language denies the

Attorney General discretion to release an alien that is subject

to this provision. Cf. Lexecon Inc. v. Milberg Weiss Bershad

Hynes & Lerach,

(1998) (noting that the

“mandatory ‘shall,’ . . . normally creates an obligation

6 impervious to judicial discretion”) (citing Anderson v. Yungkau,

(1947)).

Nyonton’s reliance on Zadvydas to avoid the clear meaning

of § 1231(a)(2) is misplaced. That case construed § 1231(a)(6).

Although Nyonton was previously held under § 1231(a)(6) beyond

Zadvydas’s “presumptively unreasonable” six-month limit. He is

currently detained under § 1231(a)(2) because he is again within

the removal period. Accordingly, § 1231(a)(6), which provides

in general terms that certain aliens “may be detained beyond the

removal period,” must yield to the more specific commands in

§ 1231(a)(2) that aliens “shall” be detained and “[u]nder no

circumstance” released within the removal period. See Bloate v.

United States,

, 207–08 (2010) (“[G]eneral language

of a statutory provision, although broad enough to include it,

will not be held to apply to a matter specifically dealt with in

another part of the same enactment . . . .” (quoting D. Ginsberg

& Sons, Inc. v. Popkin,

(1932)) (internal

quotation marks omitted).

In short, § 1231(a)(2) is only susceptible to one

interpretation and that interpretation requires mandatory

detention during the removal period. 4

4 To the extent that Nyonton argues that his detention during the removal period without an individualized bond hearing violates his right to due process, his argument is unavailing for the

7 IV. Detention after removal period

The government maintains that Nyonton’s Zadvydas claim will

not be ripe even after the removal period ends until his

“present detention under

lasts beyond six

months.” Doc. No. 36 at 5. It thus seems to argue that the

five-month intermezzo under § 1226 cured the Zadvydas breach

arising from Nyonton’s seven-month post-removal detention from

November 9, 2017 until July 16, 2018. I disagree.

The removal period for Nyonton ends on March 14, 2019. He

has already been detained for seven months under § 1231(a)(6),

longer than the presumptively unreasonable six-month period set

forth in Zadvydas. Interpreting that provision, the Supreme

Court explained that “once removal is no longer reasonably

foreseeable, continued detention is no longer authorized by

statute.” Zadvydas,

. Nyonton still lacks

travel documents. The government has no date by which it

expects to receive those documents, much less remove petitioner.

Accordingly, although I deny Nyonton’s request for an immediate

individualized bond hearing, I do so without prejudice. Nyonton

has provided “good reason to believe that there is no

significant likelihood of removal in the reasonably foreseeable

future.” See Zadvydas,

. The government has not

reasons set forth in Khotesouvan v. Morones,

(9th Cir. 2004).

8 yet responded “with evidence sufficient to rebut that showing.”

Should these circumstances persist beyond the removal

period, his continued detention cannot be authorized without an

individualized bond hearing.

V. Conclusion

Nyonton is subject to mandatory detention under

(a)(2) until the removal period expires on March 15, 2019.

Until then, his Zadvydas claim is premature.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

March 7, 2019

cc: Simon R. Brown, Esq. Thomas P. Velardi, Esq. T. David Plourde, Esq.

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