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Hasan v. Gurule

United States District Court, Ninth Circuit

July 26, 2013

Muhammed Nazmul Hasan, Petitioner,
v.
John M. Gurule, Respondent.

ORDER

DAVID G. CAMPBELL, District Judge.

Petitioner Muhammed Nazmul Hasan (A200-610-307), who is confined in the Florence Service Processing Center in Florence, Arizona, has filed a pro se Petition under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a person in federal custody. The Court will dismiss the Petition with leave to file an amended petition.

I. Petition

Petitioner is a native and citizen of Bangladesh. On June 24, 2010, he entered the United States without being admitted or paroled and was taken into the custody of Immigration and Customs Enforcement (ICE). On June 21, 2011, an Immigration Judge (IJ) denied his applications for asylum and for deferral of removal and ordered that he be removed to Bangladesh. On November 30, 2011, the Board of Immigration Appeals (BIA) dismissed his appeal. On December 9, 2011, he filed a petition for review with the United States Court of Appeals for the Ninth Circuit. On May 9, 2012, the Ninth Circuit granted a stay of removal pending review. The Ninth Circuit recently granted his petition and remanded his case to the BIA for further administrative proceedings. M.N.H. v. Holder, No. 11-73765, 2013 WL 2284920 (9th Cir. May 24, 2013) (unpublished memorandum). Petitioner argues that he is entitled to release under Zadvydas v. Davis, 533 U.S. 678 (2001), because he has been detained for more than six months and his removal to Bangladesh is not reasonably foreseeable. He seeks an order compelling Respondent to grant him supervised release.

Petitioner is not eligible for relief under the rule announced in Zadvydas because it does not apply to aliens, like Petitioner, against whom removal proceedings are still pending. Following the entry of a final order of removal, an alien is subject to mandatory detention during the 90-day removal period. 8 U.S.C. § 1231(a)(2). If he cannot be removed within the 90-day removal period, the alien may be granted supervised release or he may be further detained. 8 U.S.C. § 1231(a)(3). Under 8 U.S.C. § 1231(a)(6), an alien who is inadmissible under 8 U.S.C. § 1182 or removable under 8 U.S.C. §§ 1227(a)(1)(c), (a)(2), or (a)(4), "may be detained beyond the removal period." 8 U.S.C. § 1231(a)(6). But when there is no significant likelihood that a foreign government will accept the alien's return in the reasonably foreseeable future, the government may not detain the alien for more than the presumptively reasonable period of six months. Zadvydas, 533 U.S. at 701. That rule has no application to Petitioner's case because administrative removal proceedings are still pending against him and he is not detained under 8 U.S.C. § 1231. Because Petitioner has failed to identify any cognizable claim for habeas corpus relief, his Petition will be dismissed with leave to file an amended petition identifying a proper statutory or constitutional basis for his claim that his current detention is unlawful.

II. Warnings

A. Address Changes

Petitioner must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.

B. Copies

Petitioner must submit an additional copy of every filing for use by the Court. LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Petitioner.

C. Possible Dismissal

If Petitioner fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).

IT IS ORDERED:

(1) The Petition (Doc. 1) is dismissed with leave to amend. Petitioner must file an amended petition within 30 days of the date this Order is filed. The amended petition must be retyped or rewritten in its entirety on the appropriate court-approved form and may not incorporate any part of the original Petition by reference. The amended petition must be captioned "Amended Petition."

(2) The Clerk of Court must enter a judgment of dismissal of this action without prejudice and without further notice to Petitioner if Petitioner fails to file an Amended Petition on a court-approved form within 30 days of the date this Order is filed.

(3) The Clerk of Court must provide to Petitioner the current court-approved form for filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.


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