Sackie v. Strafford County Department of Corrections, Acting Superintendent et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Eric B. Sackie
v. 	Case No. 17-cv-005-SM
Superintendent, Strafford County
Department of Corrections; U.S.
Immigration and Customs Enforcement;
C.M. Cronen, Field Office Director;
and Karen Bruce, Deportation Officer
REPORT AND RECOMMENDATION
Petitioner Eric B. Sackie, a Liberian, petitions for a writ
of habeas corpus (Doc. No. 1), pursuant to 28 U.S.C. § 2241.
Sackie is being detained by Immigration and Customs Enforcement
(“ICE”) pending removal to Liberia. 	Sackie seeks release from
ICE custody on the grounds that: (1) his supervised release was
revoked by ICE agents without due process, and (2) his continued
detention without a hearing violates his due process rights as
articulated by the Supreme Court in Zadvydas v. Davis, 533 U.S.
678 (2001). 	Before the court is the federal respondents’ motion
to dismiss for failure to state a claim (Doc. No. 9).
Background
Sackie came to the United States in 2006. 	In 2013-2014,
Sackie was in immigration detention for a period of time. 	On
December 2, 2013, the government issued a final removal order
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for Sackie due to a criminal conviction. 	The government then
released Sackie on June 17, 2014, subject to the terms of a
supervised release order, after Liberia refused to issue him
travel documents. 	ICE concluded at that time that Sackie’s
removal was not likely in the reasonably foreseeable future.
Sackie was arrested in Seabrook, New Hampshire on March 25,
2016, on a state charge of conspiracy to commit forgery. 	Sackie
was later convicted of that charge in October 2016 and was
sentenced to a term of incarceration at the Rockingham County
Department of Corrections (“RCDOC”). 	While Sackie was in
pretrial detention in March 2016, ICE lodged a detainer for
Sackie at the RCDOC. 	ICE took Sackie into custody in November
2016, upon his release from incarceration by the state.
Petitioner claims he suffered a deprivation of his right to due
process, in that he was arrested by ICE and taken into custody
without due process, and there is no likelihood of his removal
to Liberia in the reasonably foreseeable future.
Discussion
I. 	Motion to Dismiss Standard
In ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must consider whether the factual content in
the complaint, and inferences reasonably drawn therefrom, taken
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as true, state a claim to relief. 	Hernandez-Cuevas v. Taylor,
723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). 	In doing so, the court disregards
any legal conclusions. 	Hernandez-Cuevas, 723 F.3d at 102-03.
The court is generally limited to considering “‘facts and
documents that are part of or incorporated into the complaint,’”
as well as “‘documents incorporated by reference . . . , matters
of public record, and other matters susceptible to judicial
notice.’” 	Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir. 2008)
(citations omitted). 	As petitioner is proceeding pro se in this
action, the court must construe the pleadings liberally. 	See
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
II. 	Due Process Claim as to Revocation of Supervised Release
Sackie argues that his supervised release could not be
revoked without due process. 	Sackie argues that the process he
received was deficient because ICE provided inconsistent
statements of the reasons why he was being detained, and Sackie
did not receive a pre-revocation hearing, in the nature of a
criminal prosecution, to determine whether he had violated the
terms of his supervised release.
In general, ICE detention, occurring after a removal order
has issued, is civil, not criminal in nature, and its proper
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purposes include assuring the person’s presence at the time of
removal. 	See Zadvydas, 533 U.S. at 690. 	This court need not
determine whether an alien is generally entitled to a greater
measure of procedural protections than those afforded to Sackie
before ICE revoked his supervised release, as Sackie’s
commission of a criminal act is alleged to have been a reason
ICE revoked his release. 	The timing of that offense and
Sackie’s conviction is established by the record of Sackie’s
October 13, 2016 guilty plea in State v. Sackie, No. 218-2016-
CR-00410 (N.H. Super. Ct., Rockingham Cnty.). 	That felony
conviction alone -- which “must itself have been established
through procedures satisfying the fair notice, reasonable doubt,
and jury trial guarantees,” Jones v. United States, 526 U.S.
227, 249 (1999) -- warranted Sackie’s return to ICE detention,
to the extent that compliance with the law was a term of
Sackie’s supervised release. 	See Zadvydas, 533 U.S. at 700
(“alien may no doubt be returned to custody upon a violation” of
terms of supervised release). 	Any alleged failure to provide
Sackie with additional pre-revocation process did not increase
the risk of an improper revocation, to the extent that
compliance with the law was a term of Sackie’s supervised
release. 	Accordingly, respondent’s motion to dismiss the due
process claim relating to the revocation of Sackie’s supervised
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release should be granted.
III. Zadvydas Claim
The federal respondents have moved to dismiss Sackie’s
Zadvydas claim as premature, based on the date on which Sackie
filed this action. 	Sackie’s petition was filed in January 2017,
less than two months after ICE took Sackie into custody. 	The
Court in Zadvydas recognized six months as a presumptively
reasonable period of detention after a final removal order has
issued, to allow the government to effect an alien’s removal.
Zadvydas, 533 U.S. at 701. 	There are cases deeming the
expiration of the six month period to be an element that must be
pleaded to state a viable claim. 	See, e.g., Akinwale v.
Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002) (per curiam)
(“six-month period . . . must have expired at the time
[petitioner’s] § 2241 petition was filed in order to state a
claim under Zadvydas” (footnote omitted)).
There is no controlling authority requiring dismissal of a
Zadvydas claim like Sackie’s, which ripened after the petition
was filed. 	The majority of courts to have considered whether to
dismiss in such circumstances have dismissed the Zadvydas claim
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without prejudice to refiling. 1 	One policy rationale for that
result is that dismissal in such circumstances serves a gate-
keeping function, to avoid creating incentives for petitioners
to inundate courts “with pre-emptive Zadvydas claims.”
Mehighlovesky v. U.S. Dep’t of Homeland Sec., No. CIV. 12-902
RHK/JJG, 2012 U.S. Dist. LEXIS 185286, at *8, 2012 WL 6878901,
at *2 (D. Minn. Dec. 7, 2012), R&R adopted, No. CIV. 12-902
RHK/JJG, 2013 U.S. Dist. LEXIS 6963, 2013 WL 187553 (D. Minn.
1 See, e.g., Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th
Cir. 2002) (per curiam); Mehighlovesky v. U.S. Dep’t of Homeland
Sec., No. CIV. 12-902 RHK/JJG, 2012 U.S. Dist. LEXIS 185286, at
*6, 2012 WL 6878901, at *2 (D. Minn. Dec. 7, 2012), R&R adopted,
No. CIV. 12-902 RHK/JJG, 2013 U.S. Dist. LEXIS 6963, 2013 WL
187553 (D. Minn. Jan. 17, 2013); Smith v. Tsoukaris, No. CIV.A.
12-0094 JLL, 2012 U.S. Dist. LEXIS 25162, at *13-*14, 2012 WL
646031, at *4 (D.N.J. Feb. 21, 2012); Pierre v. Napolitano, No.
11-CV-600, 2011 U.S. Dist. LEXIS 81596, at *2-*3, 2011 WL
3157288, at *1 (W.D. La. June 28, 2011), R&R adopted, No. 11-CV-
600, 2011 U.S. Dist. LEXIS 81598, 2011 WL 3157213 (W.D. La. July
26, 2011); Keita v. Sabol, Civ. No. 1:CV–11–248, 2011 U.S. Dist.
LEXIS 39501, at *5-*6, 2011 WL 1375052 at *2 (M.D. Pa. Apr. 12,
2011). 	But see Olajide v. B.I.C.E., 402 F. Supp. 2d 688, 691-93
(E.D. Va. 2005) (deeming Zadvydas claim ripe for judicial
review, where petitioner had been in custody for over six months
when court adjudicated petition, even though petition had been
filed prematurely); Ali v. Cangemi, No. 03-3189 (DWF/JSM), 2004
U.S. Dist. LEXIS 29665, at *30, 2004 WL 4000530, at *10 (D.
Minn. Mar. 30, 2004) (declining to dismiss prematurely filed
Zadvydas claims that had ripened while case was pending, as
petitioner had been in custody for over one year by the time the
court adjudicated his claims, and he was certain to file a new
petition immediately), R&R adopted, No. 03-3189 (DWF/JSM), 2004
U.S. Dist. LEXIS 29657, at *4, 2004 WL 4000530, at *2 (D. Minn.
June 1, 2004), aff’d, 384 F.3d 989 (8th Cir. 2004), vacated and
rev’d en banc on other grounds, 419 F.3d 722 (8th Cir. 2005).
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Jan. 17, 2013). 	Courts that have not dismissed such petitions
have done so reasoning that resources are wasted if an otherwise
well-founded Zadvydas claim is dismissed as untimely
notwithstanding the ensuing expiration of the six month period.
See, e.g., Ali v. Cangemi, No. 03-3189 (DWF/JSM), 2004 U.S.
Dist. LEXIS 29665, at *30, 2004 WL 4000530, at *10 (D. Minn.
Mar. 30, 2004), R&R adopted, No. 03-3189 (DWF/JSM), 2004 U.S.
Dist. LEXIS 29657, at *4, 2004 WL 4000530, at *2 (D. Minn. June
1, 2004), aff’d, 384 F.3d 989 (8th Cir. 2004), vacated and rev’d
en banc on other grounds, 419 F.3d 722 (8th Cir. 2005).
Sackie’s case presents circumstances warranting dismissal
without prejudice to refiling, now that his Zadvydas claim has
ripened. 	In April 2017, after the federal respondents had filed
their motion to dismiss, but before Sackie had been in ICE
detention for six months, ICE transferred Sackie to a detention
facility in Boston, where he remains at this time. 	Although the
federal respondents have stipulated to the court’s continued
jurisdiction over the pending action, see Doc. No. 15, Sackie’s
immediate custodian, the Superintendent of the Suffolk County
House of Corrections (South Bay), is not currently a party to
this case, and is not in New Hampshire. 	At this early stage of
the case, before any evidentiary hearing has occurred, the
dismissal of the Zadvydas claim -- without prejudice to Sackie’s
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ability to file a new petition immediately in the District of
Massachusetts -- would not likely result in substantial delays
or inefficiencies. 	Accordingly, without expressing any opinion
regarding whether there may be no significant likelihood that
Sackie will be removed in the reasonably foreseeable future, and
without prejudice to Sackie’s ability to file a new § 2241
petition in an appropriate court asserting that claim, the
district judge in this case should grant the federal
respondent’s motion to dismiss (Doc. No. 9) the Zadvydas claim
that was filed prematurely here.
Conclusion
For the foregoing reasons, the federal respondents’ motion
to dismiss (Doc. No. 9) should be granted in its entirety,
without prejudice to Sackie’s ability to file a new § 2241
petition asserting a Zadvydas claim in a court with jurisdiction
over that claim. 	Judgment should thereafter be entered in this
case.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
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right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
June 6, 2017
cc: 	Eric B. Sackie, pro se
T. David Plourde, Esq.
Thomas P. Velardi, Esq.
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