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Abuya v. Dorneker

United States District Court, D. Kansas

August 1, 2017

MAXWELL ABUYA, Petitioner,
v.
RICHARD DORNEKER, JEFFERSON SESSIONS, Respondents.

          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 at the Chase County Adult Detention Center in Cottonwood Falls, Kansas, 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.

         I. Background

         On or about December 29, 2005, Petitioner, a native and citizen of Kenya, entered the United States at Chicago, Illinois, with an F-1 Student Visa. (Doc. 4-1, at 4.) On June 29, 2015, an immigration judge in Kansas City, Missouri, ordered Petitioner removed to Kenya and denied his application for relief. Id. On July 29, 2015, Petitioner appealed the immigration judge's order to the Board of Immigration Appeals (“BIA”). On July 18, 2016, the BIA dismissed the appeal. Id.

         On September 9, 2016, a Warrant of Removal/Deportation was issued for Petitioner. Id. at 26. On October 3, 2016, Petitioner was taken into custody by ICE. Id. at 4. On October 18, 2016, Petitioner filed an Application for a Stay of Deportation or Removal with ICE in Kansas City, MO. Id. at 5. The Application was denied by the Field Office Director in Chicago, Illinois, on October 21, 2016. Petitioner filed the instant habeas petition on May 23, 2017.

         Kenya requires a travel document for anyone being removed who is not in possession of a valid passport. Id. Deportation Officer Katy Casselle (“Casselle”) sent a travel document request via UPS to the Kenya Consulate in Los Angeles, California, on October 28, 2016. Id.

         On December 28, 2016, Deportation Officer Dustin Sutton completed the Post Order Custody Review (“POCR”) and determined that Petitioner should continue to remain in ICE custody based on the pending request for a Kenya travel document. On December 29, 2016, the field office and field office director recommended continuing Petitioner's detention, based on the following facts: (1) Petitioner failed to maintain or comply with conditions of his admission as an F-1 Student; (2) Petitioner was ordered removed to his homeland of Kenya; and (3) Petitioner's travel document request is currently pending with the Kenya Consulate. Id. The Decision to Continue Detention was entered on December 29, 2016, and served personally on Petitioner on January 4, 2017. Id. at 5, 28-29.

         On March 15, 2017, Casselle spoke by phone with Immigration Officer Evelyn (“Evelyn”) at the Kenyan Consulate. Id. at 6. They arranged for the Consulate to have a telephonic interview with Petitioner on March 17, 2017, and Petitioner's telephonic interview was conducted by Evelyn on that date. Id.

         On March 29, 2017, 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”). Id.

         On April 3, 2017, Casselle called the Kenya Consulate and was notified that Evelyn was not available. Id. On April 5, 2017, Casselle spoke with Evelyn, who stated that she did not need any additional information from ICE, and that she may be able to complete and issue the travel document for Petitioner before the week was over. Id. On April 6, 2017, a Decision to Continue Detention was entered by ICE/ERO HQ RIO, and the decision was served on Petitioner on May 9, 2016. Id. at 6, 30-31.

         Casselle called the Kenya Consulate on April 10, and April 24, 2016, and was told that Evelyn was either out of the office or unavailable. Id. at 6-7. On April 25, 2016, Casselle spoke with Evelyn, who requested to speak again with Petitioner and indicated that once she spoke with Petitioner she might be able to complete and issue the travel document for Petitioner. Id. at 7. On April 26, 2017, Evelyn conducted Petitioner's telephonic interview. Id.

         Casselle called the Kenya Consulate on May 3, May 9, May 16, May 25 and May 30, 2017, and was told that Evelyn was either out of the office or not available. Id. Casselle called on May 10, 2017, and was unable to reach anyone. Id.

         On May 30, 2017, Casselle requested assistance from ICE Headquarters to obtain a travel document for Petitioner by emailing Robert Tremont-the Point of Contact for cases involving Kenyan nationals. Id. Tremont notified Casselle on May 30, 2017, that he is attempting to arrange face-to-face interviews with the Embassy of Kenya, for many Kenyan nationals with Final Orders. Id. at 8.

         On June 14, 2017, Casselle completed the Transfer Checklist for the 270-day POCR, and transferred the checklist to ICE/ERO HQ RIO. Id. A Decision to Continue Detention was entered on June 16, 2017, ...


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