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Quassani v. Killian

United States District Court, D. Nevada

December 22, 2017

JAVED QUASSANI, [1] Petitioner,
v.
JANICE KILLIAN, et al., Respondents.

          ORDER

         On June 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.

         I. BACKGROUND

         Quassani 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.

         On 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, p. 3.

         On 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.

         On 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)).

         On 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).

         On 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.

         As 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.

         II. PETITIONER'S CLAIM

         Quassani 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.

         III. DISCUSSION

         The 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.

         The 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 ...


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