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Nyonton v. Brackett

United States District Court, D. New Hampshire

March 7, 2019

Clement Sao Nyonton
v.
Christopher Brackett, Superintendent of Strafford County Department of Corrections et al.

          Simon R. Brown, Esq. Thomas P. Velardi, Esq. T. David Plourde, Esq.

          ORDER

          Paul J. Barbadoro United States District Judge

         Clement 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.

         Because 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).

         I. Background

         A. Clement Nyonton

         Clement 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.

         In 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 at 4.

         In 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.

         On June 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)).

         While 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.[1] 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[2] 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)”).

         On 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.

         So far, 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, ...


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