United States District Court, D. Nevada
15, 2017, petitioner Quassani filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241, challenging
his detention by the U.S. Marshals Service and Department of
Homeland Security, Immigration and Customs Enforcement (ICE).
ECF No. 4. Pursuant to this court's order of August 4,
2017 (ECF No. 10), Quassani filed an amended petition on
September 1, 2017. ECF No. 11. Before the court for decision
is respondents' motion to dismiss the amended petition.
ECF No. 19.
is a native and citizen of Afghanistan. ECF No. 11, p. 4. He
was admitted to the United States on January 13, 1980.
Id. His status was adjusted to that of a lawful
permanent resident on September 11, 1980. ECF No. 19-1, p. 5.
January 23, 2014, this court entered a judgment in a criminal
proceeding convicting Quassani of the following offenses:
conspiracy to commit wire fraud and mail fraud, in violation
of 18 U.S.C. § 1349; two counts of wire fraud, in
violation of 18 U.S.C. § 1343; and two counts of mail
fraud, in violation of 18 U.S.C. § 1341. U.S.A. v.
Quassani, 2:11-cr-00409-LRH-CWH (ECF No. 127). Quassani
was sentenced to a term of imprisonment of thirty-seven
months. Id. He was committed to a Federal Bureaus of
Prisons in Pecos, Texas, to serve his sentence. ECF No. 11,
September 1, 2015, an ICE hold was placed upon Quassani while
he was in federal custody in Texas. ECF No. 19-3, p. 2. On
December 9, 2015, he was issued a notice to appear charging
him with removability as an aggravated felon under
Immigration and Nationality Act, Section 237(a)(2)(A)(iii).
ECF No. 19-1, p. 2-5.
February 1, 2016, Quassani filed, in his criminal proceeding
in this court, a motion to vacate his criminal conviction
under 28 U.S.C. § 2255. Quassani,
2:11-cr-00409-LRH-CWH (ECF No. 149). On June 22, 2016, an
Immigration Judge denied Quassani's application for
relief from removal and ordered him removed. ECF No. 19-4;
see also ECF No. 19-5 (Superseding Order of the
Immigration Judge (July 22, 2016)).
January 4, 2017, Quassani was credited and released by the
Federal Bureau of Prisons and turned over to ICE officials
pursuant to an immigration detainer. ECF No. 11, p. 5.
Quassani's appeal of the Immigration Judge's decision
was denied by the Board of Immigration Appeals on March 24,
2017. ECF No. 11-1. He did not appeal the Board's
decision, so his order of removal became final on that date.
See 8 C.F.R. § 1241.1(a).
March 27, 2017, Quassani filed a petition for writ of habeas
corpus ad testificandum in relation to his § 2255 motion
asking to be released to the custody of the United States
Marshal for the District of Nevada, so he could assist
counsel and be present for hearings in that matter.
Quassani, 2:11-cr-00409-LRH-CWH (ECF No. 168). The
court granted the petition the following day. Id.
(ECF No. 169). On or about April 27, 2017, Quassani was
transferred to the U.S. Marshal for the District of Nevada
and shortly thereafter placed in custody at the Nevada
Southern Detention Facility. ECF No. 11, p. 5-6; ECF No.
19-3, p. 3.
noted above, Quassani filed his initial petition for writ of
habeas corpus in this case on June 15, 2017. Approximately
two months later, Quassani's § 2255 motion was
denied by this court in his criminal proceeding.
Quassani, 2:11-cr-00409-LRH-CWH (ECF No. 188). On
October 24, 2017, Quassani was returned to ICE custody. ECF
No. 19-3, p. 3; ECF No. 20, p. 3-4. On November 7, 2017, ICE
submitted a request to the Consulate of Afghanistan for the
travel documents necessary to effect Quassani's removal.
ECF No. 19-3, p. 3; ECF No. 19-7.
claims that his continued detention without bond violates his
substantive due process rights and, on that basis, asks this
court to order his release or, alternatively, place him on an
electronic monitoring device.
Attorney General must detain certain aliens ordered removed
on criminal grounds for a removal period of ninety days. 8
U.S.C. § 1231(a)(2). Under 8 U.S.C. § 1231(a)(6),
the Attorney General may detain criminal aliens beyond the
ninety day period based on a determination that the alien is
a risk to the community or unlikely to comply with the order
of removal. However, in Zadvydas vs. Davis, 533 U.S.
678 (2001), the United States Supreme Court held that §
1231(a)(6) authorizes the Attorney General to detain a
removable alien only for “a period reasonably necessary
to bring about that alien's removal from the United
States.” Id. at 689. The Court concluded that
"once removal is no longer reasonably foreseeable,
continued detention is no longer authorized by statute."
Id. at 699. To establish uniformity in the federal
courts, the Court recognized six months as a
"presumptively reasonable period of detention."
Id. at 701.
Court further directed that if the alien provides good reason
to believe that there is no significant likelihood of
deportation in the reasonably foreseeable future at the
conclusion of the six month period, the burden shifts to the
government to "respond with evidence sufficient to rebut
that showing." Id. The Court stated that not
every alien must be released after six months; but, rather,
an alien may still be detained beyond six months "until
it has ...