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Anyimu v. Department of Homeland Security

United States District Court, D. Kansas

April 5, 2017

SAMWEL OKARI ANYIMU, Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY, Respondent.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.

         This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241. Petitioner is detained under an order of removal entered by the immigration court in Kansas City, Missouri. Petitioner seeks immediate release from custody, asserting that his continued detention pending removal has exceeded the six-month period considered presumptively reasonable. The Court found that Petitioner's allegation that there is no significant likelihood of removal in the reasonably foreseeable future was sufficient to shift the burden to Respondent to rebut this showing. (Doc. 7.) The Court subsequently appointed counsel for Petitioner (Doc. 14) and the matter has been fully briefed. See Docs. 9, 10, 12, 17, 18, and 19.

         I. Background

         On or about August 3, 2001, Petitioner, a native and citizen of Kenya, entered the United States in Cleveland, Ohio, with an F-1 Student Visa. On December 10, 2015, the U.S. Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”) issued a Notice to Appear, charging Petitioner with removability under INA § 237(a)(1)(C)(i)[1]due to violation of his student visa on the grounds: (1) Petitioner did not attend Wichita State University from May 2003 to July 18, 2006; (2) Petitioner enrolled at Butler County Community College in August 2004 without proper authorization from DHS; and (3) Petitioner accepted employment for wages or other compensation without authorization from DHS. (Doc. 4-1, at 4.) On the same day, Petitioner was served a copy of the Notice to Appear and was issued a $10, 000 bond by ICE. Petitioner was first taken into custody on December 10, 2015, and has remained in custody since that date.

         On February 11, 2016, an immigration judge ordered Petitioner removed to Kenya. On February 26, 2016, Petitioner filed an appeal from the removal order. On May 13, 2016, the Board of Immigration Appeals (“BIA”) dismissed Petitioner's appeal and the removal order became final.

         Kenya requires a travel document for anyone being removed who is not in possession of a valid passport. (Doc. 4-1, at 6.) Because Petitioner's passport is expired, Deportation Officer Katy Casselle (“Casselle”) sent a travel document request via UPS to the Kenya Consulate in Los Angeles, California (the “Consulate”), on June 22, 2016. Casselle sent emails to the Consulate on July 14, July 27 and August 2, 2016, to inquire about the status of the travel document request. The emails were returned as undeliverable, due to the Consulate's inbox being full. Casselle also left voicemails with the Consulate on July 27 and August 2, 2016, to inquire about the status of the travel document request; but she did not receive a call back. On August 2, 2016, Casselle requested assistance from ICE Headquarters to obtain a travel document for Petitioner by emailing Robert Tremont, who is the Point of Contact for cases involving Kenyan nationals (“Tremont”). Tremont relayed that the Consulate is still reviewing the travel request.[2]

         On August 4, 2016, Casselle completed the Post Order Custody Review Worksheet (“POCRW”) and recommended that Petitioner continue to remain in ICE custody based on the pending request for a Kenya travel document. (Doc. 3, at 7-14.) The POCRW provides that Petitioner does not appear to meet any of the criteria of 8 CFR § 241.14 for continued detention. On August 9, 2016, the Enforcement and Removal Office (“ERO”) issued a “Decision to Continue Detention, ” finding that “ICE has submitted an application for a travel document to the Kenya Embassy. ICE expects that the Embassy will issue the travel document in the near future.” (Doc. 5-1, at 1.) Petitioner was served with a copy of the decision to continue his detention on the same day.

         On November 2, 2016, Casselle completed the Transfer Checklist for the 180-day Post Order Custody Review (“POCR”), and transferred the checklist to ICE Enforcement and Removal Office Headquarters Removal and International Operations (“ICE/ERO HQ RIO”). A Decision to Continue Detention, dated November 8, 2016, was entered by ICE/ERO HQ RIO, and the decision was served on Petitioner on November 16, 2016. (Doc. 5-1, at 2.) Petitioner filed this petition for writ of habeas corpus on November 17, 2016.[3]

         On January 18, 2017, the Court entered a Memorandum and Order (Doc. 7), finding that Petitioner's allegation that there is no significant likelihood of removal in the reasonably foreseeable future was sufficient to shift the burden to Respondent to rebut this showing. The Court ordered Respondent to provide a sufficient rebuttal within thirty days, finding that absent such a showing, the petition for writ of habeas corpus would be granted.

         On February 1, 2017, Casselle completed the Transfer Checklist for the 270-day POCR review, and transferred the checklist to ICE/ERO HQ RIO. (Doc. 9-1, at 8.) Also on that date, Casselle spoke by phone with Evelyn[4] at the Consulate (“Consul Makhanu”). Id. Consul Makhanu stated that an application for Emergency Certificate was needed, with Petitioner's signature. Id. Casselle faxed the application to Petitioner, with instructions to sign the application and fax it back to Casselle. Id. Casselle spoke with Petitioner on the phone and he stated that he did not want to sign anything without first speaking with his Consulate. Id. Casselle provided Petitioner with the phone number for his Consulate, and instructed Petitioner to fax the application back to her when it was completed. Id. Casselle notified Petitioner that this request was a requirement for his travel document application, and if he refused to sign the application, he was failing to comply. Id.

         On February 6, 2017, Casselle spoke with Petitioner on the phone and he stated again that he did not want to sign anything without first speaking to his Consulate. Casselle reminded him that the request was a requirement for his travel documents and his refusal to sign constituted failure to comply. Casselle also called the Consulate and left a voicemail indicating that Wichita ICE had a detainee in custody who was requesting to speak with the Consulate. A Decision to Continue Detention was entered by ICE/ERO HQ RIO on February 6, 2017, and was personally served on Petitioner on February 9, 2017.

         On February 16, 2017, when asked how many times Petitioner had attempted to contact the Consulate since he received the application to sign, Petitioner stated that he had attempted to contact the Consulate once either the previous week or the week before.

         The original application presented to Petitioner was inaccurate and only included one page of the five-page application. Casselle sent Petitioner a corrected, complete form on February 21, 2017. Petitioner sought to speak with counsel and the Consulate, and this Court appointed him counsel on February 24, 2017. As soon as counsel was afforded an opportunity to review the case and confer with Petitioner, Petitioner signed the completed application and faxed it back to Casselle on March 8, 2017. Casselle sent the signed document to the Consulate via UPS Overnight.

         On March 10, 2017, Casselle spoke by phone with Consul Makhanu at the Consulate, who informed Casselle that the Consulate needed the Emergency Certificate, with an original signature, instead of a faxed copy. On March 13, 2017, Casselle received the document with an original signature and sent it to the Consulate via UPS Overnight. On March 14, 2017, Casselle verified that the Consulate had ...


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