from the United States District Court for the Northern
District of Alabama D.C. Docket No. 4:17-cv-01793-RDP-JHE
WILLIAM PRYOR, MARTIN, and SUTTON, [*] Circuit Judges.
MARTIN, CIRCUIT JUDGE:
Singh is a citizen of India subject to a final order of
removal. Here we consider Mr. Singh's appeal from the
denial of his petition for a writ of habeas corpus under 28
U.S.C. § 2241. Mr. Singh has been in the custody of
Immigration and Customs Enforcement ("ICE") for
over 31 months and argues that he is entitled to release
under the Supreme Court's ruling in Zadvydas v.
Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001). After
careful review, and with the benefit of oral argument, we
conclude that this record was insufficient for the district
court to deny Mr. Singh's petition. We therefore remand
for further proceedings.
Singh is a native and citizen of India. He entered the United
States sometime before 1983. In 1994, he was convicted of
murder in California and sentenced to 16 years to life in
prison. On September 23, 2016, Mr. Singh was transferred from
the custody of California to the custody of ICE and placed in
removal proceedings. He said he was afraid to return to India
and received a reasonable fear interview on October 6, 2016.
His interview resulted in a negative decision. Mr. Singh
requested review of his negative fear determination and on
October 21, 2016 an Immigration Judge found that he had not
established a possibility of torture or persecution upon his
being returned to India. Mr. Singh filed a petition for
review and request for stay of removal with the Ninth Circuit
Court of Appeals on November 25, 2016. On March 8, 2017, Mr.
Singh was transferred to Etowah County Detention Center in
Alabama. On April 19, 2017, the Ninth Circuit denied his
request for a stay of removal.
October 24, 2017, Mr. Singh filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2241 in the U.S.
District Court for the Northern District of Alabama. He
argued that, because six months had passed since his order of
removal became final and his removal was not reasonably
foreseeable, the Fifth Amendment Due Process Clause did not
permit ICE to continue detaining him. The District Court
ordered the government to show cause why Mr. Singh's
petition should not be granted.
response to the show cause order, the government argued that
Mr. Singh's ongoing detention was permissible because he
had taken actions to delay his removal and because his
removal was significantly likely in the foreseeable future.
The government submitted the affidavit of Bryan S. Pitman,
who is a Supervisory Detention and Deportation Officer with
the United States Department of Homeland Security
("DHS"). In his affidavit, Mr. Pitman stated that
Mr. Singh had been "evasive" regarding his birth
certificate, passport, and the whereabouts of his family
members. He stated that Mr. Singh continued to return
incomplete travel document applications to his case officer
and that, without a complete and accurate travel document
application, the Indian Consulate would not be able to issue
a travel document. He also stated that, based on his
experience, ICE would be able to obtain a travel document for
Mr. Singh in the reasonably foreseeable future.
District Court ordered Mr. Singh to respond with
counter-affidavits or documents demonstrating the existence
of a genuine issue of material fact. Mr. Singh responded and
submitted his own affidavit. In it, he stated that
"[w]henever possible" he had complied with all of
the government's requests for information and travel
documents. However, while the government had requested his
passport and birth certificate, he did not have those
documents. He explained that the Indian travel document
application requests a phone number in India, but he was not
able to give one because he has not been to India in decades
and does not know the phone number of anyone there. He also
stated that he had not been evasive regarding the location of
his birth certificate, passport, or the location of his
family. Rather, he "simply [did] not know the
information" requested by the government, so it was
impossible for him to comply with the government's
on the papers alone, the District Court denied Mr.
Singh's petition. It held that Mr. Singh was not entitled
to habeas relief because he had not "presented a good
reason to believe that his removal [was] significantly
unlikely in the reasonably foreseeable future" and had
"acted to prevent his removal." Mr. Singh timely
filed this appeal.
review de novo the denial of a petition for habeas
corpus under 28 U.S.C. § 2241. Bowers v.
Keller, 651 F.3d 1277, 1291 (11th Cir. 2011) (per
curiam). We review factual findings in a habeas corpus
proceeding for clear error. Byrd v. Hasty, 142 F.3d
1395, 1396 (11th Cir. 1998).
noncitizen's order of removal becomes administratively
final, the Government "shall" remove that person
within 90 days. 8 U.S.C. § 1231(a)(1)(A). Section 1231
provides that noncitizens with final removal orders shall be
detained during the 90-day removal period, id.
§ 1231(a)(2), which begins on the date the removal order
becomes administratively final or, if the order is judicially
reviewed and the court enters a stay, the date of the
court's final order. Id. §
1231(a)(1)(B)(i), (ii). The 90-day removal period shall be
extended, and the noncitizen may remain in detention, if the
noncitizen (1) "fails or refuses to make timely
application in good faith ...