Joshua H. v. Sessions

Background

Joshua H. entered the United States as a refugee in 1999 and later became a lawful permanent resident. After a 2009 conviction for second-degree assault, immigration officials detained him and began removal proceedings. An immigration judge ordered him removed to Liberia in March 2010, and he did not appeal that decision. He was later released under an order of supervision because the Liberian Embassy was not regularly conducting interviews or issuing travel documents.

After Joshua H. served a sentence for several later criminal convictions, including a 2015 conviction for driving while impaired, Immigration and Customs Enforcement detained him again on April 16, 2018. He filed a petition under 28 U.S.C. § 2241, a federal procedure for challenging unlawful detention, arguing that his continued immigration detention was too long and requesting immediate release.

Legal standard and analysis

The court applied the Supreme Court’s decision in Zadvydas v. Davis. Under that framework, detention after a final removal order is generally presumed constitutional for six months. After that period, the government must provide sufficient evidence to rebut a showing that there is no significant likelihood of removal in the reasonably foreseeable future.

The court recognized that Joshua H. had been detained for more than six months and, in fact, for more than a year. But it agreed with the magistrate judge that he had not established a sufficient reason to believe that removal was unlikely in the reasonably foreseeable future. ICE had repeatedly contacted the Liberian Embassy, the Embassy had interviewed Joshua H. and requested a second interview, and the government represented that travel documents should be forthcoming. The court also noted evidence that the government had regularly removed detainees to Liberia and that Liberia was cooperating in issuing travel documents.

Joshua H. objected that the Embassy was unwilling to issue his travel documents because of a pending civil matter. The court found that the circumstances instead showed a significant likelihood of removal at that time and stated that mere delay was not enough to establish that Liberia would never accept him.

Disposition

The court overruled Joshua H.’s objections, adopted the recommendation or order identified in the ruling, and denied the petition under 28 U.S.C. § 2241 without prejudice. The opinion stated that a renewed challenge could be made if Joshua H. was not removed soon. The conclusion refers to Magistrate Judge Brisbois’s order, while the body identifies Magistrate Judge Tony N. Leung as the author of the report and recommendation; the opinion does not explain this discrepancy.