United States District Court, D. New Hampshire
J. McAuliffe United States District Judge.
the court is Francis Wilson Mezan's petition for a writ
of habeas corpus under 28 U.S.C. § 2241 (document no.
1), which petitioner filed while being held at the Strafford
County Department of Corrections (“SCDC”), in the
custody of Immigration and Customs Enforcement
(“ICE”). Mezan requests release or, in the
alternative, an immediate bond hearing. For the reasons that
follow, Mezan's petition is denied without prejudice.
was born in Khartoum, Sudan, in 1990. When he was nine years
old, his father was killed, and his mother was kidnapped,
detained, and beaten. Mezan's parents were purportedly
targeted by the Sudanese government because of his
father's work for a Christian aid organization, the
family's Christian religion, and imputed anti-government
political opinions. Mezan and his family fled Sudan, living
as refugees in Egypt until Mezan was admitted to the United
States in 2007, settling in Maine. Mezan did not adjust his
status to that of lawful permanent resident; he remained a
August, 2011, Mezan was convicted in the Superior Court of
Portland, Maine, for the offenses of criminal threatening
with a firearm, and criminal threatening with a dangerous
weapon. As a result of his convictions, on September 22,
2011, ICE charged Mezan with removability under 8 U.S.C.
§ 1227(a)(2). Mezan applied for adjustment of status and
a refugee waiver, as well as asylum, and sought withholding
and deferral of removal under the Convention Against Torture
(“CAT”). An immigration judge (“IJ”)
denied substantive relief, but deferred removal to Sudan
under the CAT. Mezan's order of removal became final on
August 27, 2012, after exhaustion of his appeal.
was released from custody in March of 2012. In September and
November of 2018, Mezan was convicted of several crimes,
including: assault, driving while intoxicated, unlawful
possession of a controlled substance, multiple probation
violations, and failure to provide his correct name, address
and date of birth.
result of Mezan's continued criminal activity, his case
again came to ICE's attention. ICE determined that
Mezan's parents were born in what is now the Republic of
South Sudan (which gained independence from the Sudan in
2011). Because Mezan's parents were born in South Sudan,
ICE reasoned that Mezan is likely a South Sudanese citizen.
Accordingly, on November 29, 2018, ICE arrested Mezan so that
South Sudanese officials could interview him to determine
whether Mezan is, in fact, a citizen of South Sudan, and to
decide whether to issue him a travel document. Since November
29, 2018, Mezan has been detained at the Strafford County
Department of Corrections in Dover, New Hampshire.
about November 28, 2018, ICE provided Mezan with a Notice to
Alien of File Custody Review, which stated that ICE would
conduct his custody review on or about February 27, 2019, and
that he could submit documentation to ICE in support of his
release prior to that date. On December 4, 2018, ICE gave
Mezan a Notice of Revocation of Release, which stated that
ICE had revoked his release because his case was under review
by South Sudan for issuance of a travel document that would
allow ICE to effect his order of removal.
December 20, 2018, Mezan filed a motion to reopen his removal
proceedings with the Boston immigration court. He sought to
stop his removal to South Sudan, and to present evidence that
he was entitled to deferral relief under the CAT. Mezan's
motion was denied on February 11, 2019. Mezan appealed that
denial, which appeal is currently pending before the Board of
Immigration Appeals (BIA).
February of 2019, Mezan filed a habeas corpus petition in
this court. He sought to prevent his removal while he pursued
his motion to reopen the removal proceedings. See Mezan
v. DHS, et. al., 19-cv-000198-JL, U.S.D.C., D.N.H.
(“Mezan I”). In the course of that action, Mezan
and the Government reached an agreement. The Government
agreed not to remove Mezan from the United States prior to
the BIA's ruling on Mezan's motion to reopen his
case, and Mezan filed a voluntary dismissal of the petition.
As part of that agreement, Mezan acknowledged that a stay of
removal would result in his continued detention. See Gov.
Mot. to Dismiss, Exh. B, ¶ 4 and Attachment 1 (Mar. 1,
2019, email from petitioner's counsel stating, “we
understand that [Mezan] will not be released.”). The
stipulated order of dismissal was approved by the court on
March 7, 2019.
August 5, 2019, Mezan filed this habeas corpus petition, in
which he seeks an order of immediate release, or a bond
hearing. The Government objects, and has moved to dismiss his
this court's jurisdiction over immigration cases is
curtailed by the REAL ID Act, 8 U.S.C. § 1252, the court
may still review habeas challenges to unlawful immigration
detention. See Aquilar v. U.S. Immigration & Customs
Enforcement Div. of Homeland Sec., 510 F.3d 1,
11 (1st Cir. 2007) (“[D]istrict courts retain
jurisdiction over challenges to the legality of detention in
the immigration context.”). Petitioner claims habeas
relief on the grounds that his current post-removal detention
support of his petition, Mezan argues that his continued
detention is prohibited by the Supreme Court's holding in
Zadvydas v. Davis, 533 U.S. 678 (2001), because he
has been detained for more than six months, and his actual
removal date is not reasonably foreseeable. Mezan says that
he has raised meritorious challenges to his removal before
the BIA, and, therefore, faces removal proceedings for an
indefinite period of time. He further argues that an