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Aden v. Nielsen

United States District Court, W.D. Washington, Seattle

June 20, 2019

NAJIB ALI ADEN, Petitioner,
KIRSTJEN NIELSEN, et al., Respondents.


          Robert S. Lasnik, United States District Judge.

         Najib Ali Aden, proceeding through counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Dkt. #1. Petitioner claims that he has been ordered removed to Kenya, but that the U.S. Immigration and Customs Enforcement (“ICE”) attempted to remove him to Somalia without giving him a hearing regarding his fear of persecution and torture in that country. Id. Petitioner is currently detained by ICE and seeks immediate release. In October 2018, the Court stayed petitioner's removal pending resolution of this matter.

         The Court adopts the Background section of the Report and Recommendation as well as subsections A, B, C, and F of the Discussion section (Dkt. #11 at 1-14) as incorporated below:

         I. BACKGROUND

         Petitioner was born in a refugee camp in Kenya to Somali parents and was orphaned as an infant. Dkt. #2-1 at 1-2; Dkt. #8-1 at 1; Dkt. #8-2 at 1. He was raised by an aunt in the Kenyan camp and came to the United States as a refugee in 2007 when he was 15 years old. Dkt. #2-1 at 1; Dkt. #2-2 at 12-13; Dkt. #6-1 at 2-3; Dkt. #8-2 at 1. Petitioner applied for lawful permanent residence in December 2011, and his application was approved in May 2012. Dkt. #6-1 at 5-10.

         A. Petitioner's removal proceedings

         In 2014, petitioner was convicted of robbery offenses in King County, Washington. Dkt. #2-2 at 11. After he served his sentence, the Department of Homeland Security (“DHS”) took him into custody and detained him at the Northwest Detention Center. Id. at 1-3, 10-12; see also Dkt. #6-1 at 17, 19. During an initial interview with an immigration officer on October 4, 2017, petitioner indicated that he is a native and citizen of Kenya and that his deceased parents were natives and citizens of Somalia. Dkt. #6-1 at 14. The same day, DHS initiated removal proceedings against him by filing a Notice to Appear (“NTA”), which alleged that he is removable based on his robbery convictions. Dkt. #2-2 at 1-3. The NTA alleged that he is a native and citizen of Kenya. Id. DHS determined that petitioner should be detained pending his removal proceedings. Dkt. #6-1 at 17; see also Id. at 19.

         During removal proceedings, petitioner admitted the allegations in the NTA, including that he is a native and citizen of Kenya. Dkt. #7 at ¶9. Petitioner designated Kenya as the country of removal. Dkt. #2-1 at ¶4; Dkt. #7 at ¶9. Somalia was not discussed during the removal proceedings as an alternative country of removal. Dkt. #2-1 at ¶4. On December 20, 2017, the immigration judge (“IJ”) ordered petitioner removed to Kenya. Dkt. #2-1 at ¶4; Dkt. #7 at ¶9; Dkt. #7-1 at 18. Both parties waived the right to appeal the IJ's order. Dkt. #7-1 at 18.

         B. ICE's efforts to remove petitioner

         On January 9, 2018, U.S. Immigration and Customs Enforcement (“ICE”) Deportation Officer Jose Alvarez submitted a travel document request to the Kenyan government on petitioner's behalf: the request asserted that petitioner was a native and citizen of Kenya.[1] Dkt. #7 at ¶11; Dkt. #7-2 at 2-3. On February 26, 2018, the Consulate General of the Republic of Kenya issued a determination finding that petitioner is not a citizen of Kenya and denying ICE's request for a travel document. Dkt. #7 at ¶14; Dkt. #7-2 at 8; Dkt. #10 at ¶6.

         Subsequently, Officer Alvarez began to inquire about the possibility of removing petitioner to Somalia, where his parents were born. Dkt. #10 at ¶7. In March 2018, Officer Alvarez informed petitioner that Kenya had denied his request for a travel document and that ICE would be seeking a travel document from Somalia. Id. at ¶8; Dkt. #2-1 at ¶5. The parties dispute what occurred during this conversation. Petitioner avers that he told Officer Alvarez that he was afraid to go to Somalia and would want to reopen his case to fight any efforts to send him there. Dkt. #2-1 at ¶¶4-5; Dkt. #8-2 at ¶2. According to petitioner, Officer Alvarez told him that he could reopen his case but they should get a travel document first. Dkt. #8-2 at ¶3. Officer Alvarez, on the other hand, declares that petitioner stated he did not want to go to Somalia, but he never stated he was afraid he would be harmed there. Dkt. #10 at ¶9. Officer Alvarez left petitioner with paperwork to fill out that would assist in obtaining a travel document from Somalia. Dkt. #8-2 at 4.

         When petitioner and Officer Alvarez next met to discuss obtaining a travel document to Somalia, petitioner refused to cooperate. Dkt. #8-2 at ¶5; Dkt. #10 at ¶¶10-11. Petitioner stated that he wanted to reopen his case and was consulting with an attorney. Dkt. #8-2 at ¶5; Dkt. #10 at ¶¶10-11.

         On March 21, 2018, Officer Alvarez submitted a Somali travel document application on petitioner's behalf, claiming that petitioner was a native of Kenya and a citizen of Somalia. Dkt. #7-2 at 10-11. Officer Alvarez completed the application without petitioner's assistance or review. See Dkt. #10 at ¶10. As petitioner points out, there appear to be several errors in the application, including the assertions that petitioner was born in Somalia and had previously lived in Somalia, when in fact he has never been there. See Dkt. #8-1; Dkt. #8-2 at ¶¶6-7; Dkt. #2-1 at ¶4.

         On March 30, 2018, ICE released petitioner from immigration custody on an order of supervision because it had determined that removal was not significantly likely in the reasonably foreseeable future. Dkt. #7 at ¶¶18-19; Dkt. #7-2 at 13, 15-17. The release notification letter informed petitioner that ICE would continue to make efforts to obtain a travel document and, “Once a travel document is obtained, you will be required to surrender to ICE for removal. You will, at that time, be given an opportunity to prepare for an orderly departure.” Dkt. #7-2 at 13.

         On May 17, 2018, the Embassy of the Federal Republic of Somalia determined that petitioner is a national and issued a travel document that was valid until November 18, 2018. Dkt. #7 at ¶20; Dkt. #7-2 at 19. ICE did not inform petitioner that it had obtained the travel document. Dkt. #2-1 at ¶¶8-9.

         On June 15, 2018, an ICE officer called petitioner and informed him that he had been approved to do check-ins with ICE by phone but would need to come into the office to sign paperwork. Id. at ¶8. When petitioner reported to the ICE office three days later, an officer served him with a Notice of Revocation of Release and detained him. Dkt. #7 at ¶23; Dkt. #7-2 at 21-22; Dkt. #2-1 at ¶8. The Notice informed petitioner that ICE had determined that there was a significant likelihood of removal in the reasonably foreseeable future, but otherwise ICE officers refused to tell petitioner what was going on. Dkt. #7-2 at 21; Dkt. #2-1 at ¶8. On June 21, 2018, ICE transferred petitioner to a facility in Louisiana as a part of the staging process for a chartered flight to Somalia. Dkt. #7 at ¶24; Dkt. #2-1 at ¶8. ICE officers continued to refuse to tell petitioner what they were planning to do with him. Dkt. #2-1 at ¶9. After speaking with other detainees, petitioner determined that a ...

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