Deqa M. Y. v. Barr

Background

Deqa M. Y. filed a petition under 28 U.S.C. § 2241 challenging her continued detention after an administratively final removal order. She had been detained since July 10, 2019, under 8 U.S.C. § 1231(a)(6), which permits detention of certain people subject to removal orders beyond the initial 90-day removal period. She argued that her detention violated § 1231(a)(6) and the Fifth Amendment’s Due Process Clause.

Deqa also filed an emergency motion seeking immediate release while the petition was pending. She relied on the COVID-19 pandemic and health conditions that she believed increased her risk of severe complications if she contracted the virus in government custody.

Legal standard

The Supreme Court’s decision in Zadvydas v. Davis interprets § 1231(a)(6) to prohibit indefinite detention. Under that decision, detention must last no longer than reasonably necessary to carry out removal. After six months of detention, if the detained person provides good reason to believe that removal is not significantly likely in the reasonably foreseeable future, the government must respond with evidence rebutting that showing.

A magistrate judge recommended denying Deqa’s petition because her removal was significantly likely to occur in the reasonably foreseeable future. The magistrate judge also recommended denying the emergency release motion as moot. Because Deqa objected, Judge Tostrud reviewed the recommendation independently.

The likelihood of removal

The court agreed that Deqa initially showed good reason to believe that removal to Somalia was not significantly likely in the reasonably foreseeable future. Evidence showed that international flights to Somalia had been suspended during the COVID-19 pandemic, and there was no concrete indication when the suspension would end.

The court nevertheless concluded that the government rebutted that showing. An Immigration and Customs Enforcement officer reported that Deqa’s travel document was being renewed, that the Somali Embassy had resumed issuing travel documents, and that a chartered removal flight was being planned. A later declaration stated that Somalia had issued Deqa a renewed travel document, that Somalia did not have an international-travel ban for returning citizens, and that Kenya had lifted relevant travel restrictions. The declaration also stated that Deqa was listed on a charter flight scheduled for mid-September and that the government would try commercial flights before then if possible.

Based on this evidence, the court found that the government was making progress and that Deqa’s removal was significantly likely to occur in the reasonably foreseeable future. The court therefore held that Deqa was not entitled to immediate release under Zadvydas.

Disposition

The court overruled Deqa’s objections and accepted the Report and Recommendation. The final order dismissed her § 2241 petition without prejudice and denied her emergency motion for immediate release as moot. The court explained that if the government stalled or otherwise failed to remove Deqa, she could renew her claim by filing a new petition. The order was signed by Judge Eric C. Tostrud.