Nicholas Leslie v. Charles Mule

423 F. App'x 29

• Court: Court of Appeals for the Second Circuit
• Decided: May 23, 2011
• Docket: 10-2115-pr
• Status: Unpublished

Opinion

SUMMARY ORDER

Nicholas Leslie, pro se, appeals from the May 6, 2010 judgment of the District Court denying his 28 U.S.C. § 2241 petition. We assume the parties’ familiarity with the facts and procedural history of this action.

We review de novo a district court’s denial of a § 2241 petition. See Rankine v. Reno, 319 F.3d 93, 98 (2d Cir.2003). 28 U.S.C. § 2241(c)(3) authorizes a district court to consider the legal claims of a prisoner who is “in custody in violation of the Constitution or laws or treaties of the United States.”

Although the law provides that when an alien is ordered removed, the Attorney General must remove the alien within a period of 90 days, a habeas petitioner’s due process rights “are not jeopardized by his continued detention as long as his removal remains reasonably foreseeable.” Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir.2003) (citing Zadvydas v. Davis, 533 U.S. 678, 699-701, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001)). In Zadvydas, the Supreme Court held that six months of detention, following a final order of removal, is presumptively constitutional, but the Court also held that the presumption “does not mean that every alien not removed must be released after six months.” Zadvydas, 533 U.S. at 701, 121 S.Ct. 2491. “To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.” Id. “After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing.” Id.

In this case, Leslie has not demonstrated that there is no significant likelihood of removal in the reasonably foreseeable future. Leslie has been detained well beyond the six-month period found presumptively reasonable; however, the evidence presented to the District Court and this Court by the respondent indicates that the delay in processing Leslie’s removal has been caused by his own refusal to cooperate and his false claims of United States citizenship. Petitioner has not provided this Court with any authority or evidence demonstrating that the District Court’s findings were incorrect. Accordingly, we affirm the judgment of the District Court.

CONCLUSION

For the reasons stated above, the judgment of the District Court is AFFIRMED.