United States District Court, D. New Hampshire
R. Brown, Esq. Thomas P. Velardi, Esq. T. David Plourde, Esq.
J. Barbadoro United States District Judge
Sao Nyonton, a foreign national, petitions this court for a
writ of habeas corpus. He challenges his statutorily mandated
detention, which has now exceeded fourteen months, and
requests an individualized bond hearing.
Nyonton's claim is premature, I decline his request for
an immediate bond hearing without prejudice to his right to
renew his request if he continues to be detained after the
removal period specified in 8 U.S.C. § 1231(a)(2).
Nyonton is a Liberian national who entered the United States
as a refugee in 2000. He has not left since. See
Doc. No. 31 at 4.
2008, Nyonton was convicted of possession of cocaine in the
state of Rhode Island and served his sentence there.
See Doc. No. 31 at 4. He was transferred to United
States Immigration and Customs Enforcement
(“ICE”) custody upon his release. See
Doc. No. 31 at 4. While detained, Nyonton received a
“Notice to Appear” for a removal hearing stating
that he was to appear at a time and place “to be
determined.” Following Nyonton's hearing, he was
ordered removed as an alien convicted of violating a
controlled substance law pursuant to §
212(a)(2)(A)(i)(II) of the Immigration and Nationality Act,
codified at 8 U.S.C. § 1182(a)(2)(A). The subsequent
90-day “removal period” contemplated by 8 U.S.C.
§ 1231(a)(1)(A) expired on December 28, 2009. Instead of
removing Nyonton, ICE at that point released him from custody
on an order of supervised release. See Doc. No. 31
2017, Nyonton was convicted of forgery and counterfeiting in
Rhode Island. See Doc. No. 31 at 4. Upon his release
from state custody on November 9, 2017, ICE took Nyonton into
custody pending the execution of the prior removal order.
See Doc. No. 31 at 5. He has been in ICE custody
since that day.
4 2018, Nyonton filed a pro se petition for a writ of habeas
corpus in this Court. See Doc. No. 1. He asserted
that he was entitled to an individualized bond hearing
because he had been detained more than six months after his
removal period ended and his deportation was not reasonably
foreseeable. See Doc. No. 1 at 2 (citing
Zadvydas v. Davis, 533 U.S. 678, 686 (2001)).
Nyonton's habeas corpus petition was pending, an
immigration judge granted Nyonton's motion to reopen his
removal proceeding because his “Notice to Appear”
failed to designate the specific time and place for the
hearing. That grant shifted the statutory basis for
his detention from 8 U.S.C. § 1231(a)(6) (providing that
an “alien ordered removed who is inadmissible under
section 1182 of this title . . . may be detained beyond
the removal period”) to 8 U.S.C. § 1226(c)(1)(A)
(mandating that “Attorney General shall take into
custody any alien who is inadmissible by reason of having
committed any offense covered in section 1182(a)(2)”).
November 14, 2018, the immigration judge ordered Nyonton
removed to Liberia. Because he did not appeal that order, it
became final on December 14, 2018. See Doc. No. 30
at 2. When the new removal order became final, Nyonton was
brought under the purview of § 1231(a)(2), which
dictates that “[d]uring the [90 day] removal period,
the Attorney General shall detain the alien” and that
“[u]nder no circumstance during the removal period
shall the Attorney General release an alien who has been
found inadmissible under section 1182(a)(2).”
See Doc. No. 30 at 2.
Nyonton has been detained under § 1231(a)(6) for
slightly over seven months (from November 9, 2017 until July
16, 2018), detained under § 1226(c)(1)(A) for slightly
under five months (from July 16, 2018 until December 14,
2018), and detained under § 1231(a)(2) for slightly
under three months (from December 14, 2018 until today). If
he is detained after March 14, ...