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Mezan v. U.S. Department of Homeland Security

United States District Court, D. New Hampshire

October 1, 2019

Francis Wilson Mezan, Petitioner
v.
U.S. Department of Homeland Security, Acting Secretary Kevin K. McAleenan; Immigration and Customs Enforcement, Acting Field Office Director Marcos Charles; and Strafford County Department of Corrections, Superintendent Christopher Brackett, Respondents

          ORDER

          Steven J. McAuliffe United States District Judge.

         Before 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.

         BACKGROUND

         Mezan 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 refugee.

         In 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.

         Mezan 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.

         As a 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.

         On or 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.

         On 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).

         In 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.

         On 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 Petition.

         DISCUSSION

         While 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 is unlawful.

         In 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 ...


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