United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART HABEAS PETITION
S. Lasnik, United States District Judge.
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.
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:
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.
Petitioner's removal proceedings
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.
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.
ICE's efforts to remove petitioner
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. 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.
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.
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.
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.
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.
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
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 ...