Fahim v. Ashcroft

227 F. Supp. 2d 1359, 2002 U.S. Dist. LEXIS 21772, 2002 WL 31432802
CourtDistrict Court, N.D. Georgia
DecidedSeptember 30, 2002
DocketCIV.A. 102CV338JEC
StatusPublished
Cited by18 cases

This text of 227 F. Supp. 2d 1359 (Fahim v. Ashcroft) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fahim v. Ashcroft, 227 F. Supp. 2d 1359, 2002 U.S. Dist. LEXIS 21772, 2002 WL 31432802 (N.D. Ga. 2002).

Opinion

ORDER

CARNES, District Judge.

Petitioner, Sameh Radamis Fahim, an Egyptian national presently confined at the Columbia Care Center in Columbia, South Carolina, has filed a habeas corpus petition, pursuant to 28 U.S.C. § 2241, in which he challenges his ongoing detention by the Immigration and Naturalization Sendee (“INS”). 1 Petitioner contends that he has been detained for an unreasonable period of time, pursuant to Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), and he demands his immediate release from custody.

Factual Summary

Petitioner is a native and citizen of Egypt who first arrived in the United States in 1990 on a student visa. (Resps.’ Mot. To Dismiss [4] at Exh. 1.) At some point, he left school, 2 apparently because *1361 he was suffering from a serious mental illness. (Pet’s Mem. [5] at 1.) Instead of returning home to Egypt, as he should have done since he was no longer in school, petitioner stayed in this country, and he has now, in violation of the law, overstayed his visa for several years.

Petitioner has been committed to a mental hospital at least two times 3 for psychiatric care and, on one occasion, he escaped from the custody of such a facility. In 1995, Petitioner was committed to an Alabama psychiatric institution under court order for three months. (Resps.’ Mot. [4] at Exh. 1.) In March 1999, Petitioner was again committed to a psychiatric institution in Alabama, but escaped and was ultimately arrested and convicted of theft of services in Texas. (Id.) Petitioner was returned to the psychiatric facility from which he escaped. (Id.)

Petitioner apparently attracted the attention of INS officials as a result of an investigation by the United States Secret Service. Specifically, the Secret Service had been investigating petitioner because of threatening letters that he had been sending to Chelsea Clinton. (Id. at Exh. 1-H.) Initially, these letters were romantic in nature, but they later began to have a hostile tone. Petitioner also expressed hostility toward Ms. Clinton in a letter to a third party. As a result, the Secret Service interviewed petitioner who expressed anger toward then Vice-President Gore and toward former President Bush, whom petitioner blamed for his hospitalization; petitioner also revealed “great hostility” toward his mother. (Id.)

In July 1999, INS officials detained Petitioner, serving a Notice to Appear that charged Petitioner with being removable because he had failed to comply with the conditions of his nonimmigrant status. (Id.) On March 22, 2000, an Immigration Judge ordered Petitioner removed from the United States. (Resps.’ Mot. [4] at Exh. 1-D.) On February 27, 2001, the Board of Immigration Appeals (“BIA”) dismissed Petitioner’s appeal. (Id. at Exh. 1-E.)

On March 27, 2001, petitioner filed a Petition for Review of the Order of Removal with the Eleventh Circuit. The Eleventh Circuit dismissed the case on January 9, 2002. (Pet. For Writ of Habe-as Corpus (hereinafter Pet.)[l] at ¶ 9.) One month later, on February 6, 2002, petitioner filed the instant petition.

The Parties’ Contentions

In his petition for a writ of habeas corpus, Petitioner states that:

The INS has detained the Petitioner since February 2001. By detaining him for over ninety days without removing him or releasing him, the INS has violated the rule set by [t]he Supreme Court in Zadvydas .... Petitioner remains detained by the INS without hope that he will either be deported to Egypt or be released from INS custody to be under the care of doctors and his family. This restraint on Petitioner’s liberty is in violation of the Constitution and laws and treaties of the United States because this detention is without a rational *1362 basis and is meant to punish Petitioner rather than to secure his deportation should that ever be required.

(Pet. [1] at ¶ 19.) In short, petitioner’s claim is based on the Zadvydas decision and he argues that his continued detention pending deportation exceeds what that decision indicates to be a reasonable period of detention, as required by pertinent immigration statutes.

In its Motion to Dismiss, filed on February 11, 2002, the INS states that it “has diligently pursued Petitioner’s removal and maintains the expectation that Petitioner can and will be returned to his native country of Egypt.” (Resps.’ Mot. [4] at 5.) The INS, on July 19, 2001, sent an emergency travel document request to the Egyptian Embassy. (Resps.’ Mot. [4] at Exh. 1 — F.) Second, only three months before petitioner had filed the present petition, on November 8, 2001, the INS had flown petitioner to the Egyptian Embassy in Washington, D.C. for an interview to try to move along the process of getting the travel documents issued. (Id. at 9.)

The INS also asserts that Petitioner has a valid passport that would facilitate his return to Egypt, but that he has so far refused to produce it. (Id. at 5 and Exh. 1.) The INS investigation has indicated that petitioner was issued an Egyptian passport in 1990 and that he renewed this passport in 1997 at the Egyptian Consulate in Houston, Texas. Indeed, petitioner indicated on the date of his arrest, July-14, 1999, that he had a valid passport in a safe deposit box at a specified bank in Montgomery, Alabama. (Id. at Exh. 1.) Since that time, petitioner has stated that his passport was sent to his uncle in Cairo, Egypt and has further indicated that he will not assist the INS in retrieving this passport. (Id. at Exh. 1-F.)

According to a report authored by an INS official on January 8, 2002, this official recommends against releasing petitioner on bond. (Id. at Exh. 1-H.) In addition to reiterating the troubling communications concerning the Clintons, Gore, and former President Bush, the official indicated that, although petitioner would probably do well if he were on medication, he always refuses to take his medicine once released from a mental hospital. Further, although petitioner has family in this country, the official indicates that they have been unable to control his behavior in the past and that they show no reason to believe that they could do so in the future. Accordingly, based on petitioner’s history of absconding from mental health programs and his potential danger to the community, the official recommended against release on bond, pending petitioner’s deportation to Egypt. (Id.)

Discussion

I. Zadvydas Decision

In Zadvydas, the Supreme Court held that the post-removal detention statute, 8 U.S.C.

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227 F. Supp. 2d 1359, 2002 U.S. Dist. LEXIS 21772, 2002 WL 31432802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fahim-v-ashcroft-gand-2002.