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SERETSE-KHAMA v. ASHCROFT

July 22, 2002

DONALD SERETSE-KHAMA, PETITIONER,
V.
JOHN D. ASHCROFT, ATTORNEY GENERAL; JAMES ZIGLAR, INS COMMISSIONER; DAVID VENTURELLA, DIRECTOR, HEADQUARTERS POST-ORDER DETENTION UNIT; AND WARREN A. LEWIS, INS DISTRICT DIRECTOR, RESPONDENTS.



The opinion of the court was delivered by: Bates, District Judge.

MEMORANDUM OPINION

Before the Court is petitioner Donald Seretse-Khama's motion for a preliminary injunction seeking his release from the custody of the Immigration and Naturalization Service ("INS") pending either resolution of his petition for a writ of habeas corpus or his removal to Liberia. Petitioner is a detained alien subject to removal from the United States. This case raises a serious issue relating to the application of the Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), in light of the fact that petitioner has been detained pending removal since August 3, 1998. In consideration of the parties' briefs and oral argument, the INS records regarding petitioner, and the entire record, the Court grants petitioner's motion and orders his release pending either his removal to Liberia or an adverse decision on his habeas corpus petition.

I. Procedural Posture and Jurisdiction

To begin with, however, a threshold issue must be addressed. The government has taken this Court and petitioner on a very troubling procedural ride, changing its position on a critical issue at the eleventh hour. The issue is whether respondents have waived the right to assert a lack of personal jurisdiction over respondent Warren Lewis, the District Director of the INS for the Washington, D.C. region, including Virginia.

On May 16, 2002, petitioner filed this habeas petition and his motion for a preliminary injunction. The Court promptly scheduled a hearing on the preliminary injunction for June 24, 2002, and set a briefing schedule, to which petitioner agreed when respondents pledged not to transfer petitioner prior to July 15. Respondents filed a response to the habeas petition on June 12, 2002, titled "Respondents' Opposition to Petitioner's Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241" (hereinafter "Opposition"), in which they contended that petitioner's detention was lawful and that his removal was imminent. Petitioner then filed a reply (styled a "traverse") on June 17, 2002.*fn1 Then on June 20, 2002 — eight days after filing their opposition to the habeas petition — respondents filed a "Motion to Dismiss Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 or in the alternative to Transfer" (hereinafter "Motion to Dismiss"). In this second filing, respondents argued for the first time that this Court did not have personal jurisdiction over Edward L. Crosley, the superintendent of the Central Virginia Regional Jail in Orange, Virginia, where petitioner is detained.*fn2 Respondents moved to dismiss the petition under Rule 12(b)(2) for lack of personal jurisdiction over Crosley, claiming that although he has not been sued, he is the only proper respondent because he is the true custodian of petitioner.

Subsequently, at the June 24th hearing, respondents reversed their position again, this time asserting that Crosley is not the proper respondent and custodian after all, but rather that Warren Lewis, the INS District Director, is. Respondents contend that the Court lacks personal jurisdiction over Lewis because his office is in Arlington, Virginia, and his actions with respect to petitioner all occurred in the Western District of Virginia. Petitioner opposed the motion to dismiss as untimely and waived under Fed.R.Civ.P. 12(h)(1), but respondents countered that they could amend their initial opposition to the habeas petition pursuant to Fed.R.Civ.P. 15(a) to reflect this latest defense of lack of personal jurisdiction. The parties filed supplemental briefs on the issue at the Court's direction.

The Court finds that respondents waived the right to challenge personal jurisdiction over respondent Lewis in this case.*fn3 Rule 12(h)(1) states in relevant part that "[a] defense of lack of jurisdiction over the person . . . is waived (A) if omitted from a motion in the circumstances described in subdivision (g)." In turn, Rule 12(g) states in relevant part that "[i]f a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted."*fn4 Reading Rules 12(h)(1) and 12(g) in tandem, the defense of lack of personal jurisdiction over respondent Lewis is waived. On June 20, 2002, respondents filed a motion to dismiss asserting that there was no personal jurisdiction over Crosley. But respondents did not raise, and thus "omitted," the defense that the Court did not have personal jurisdiction over respondent Lewis. Rule 12(g) unequivocally states that respondents cannot make a second motion — whether written or oral — to raise the omitted defense of lack of personal jurisdiction over Lewis.*fn5 See, e.g., Albany Ins. Co. v. Almacenadora Somex, S.A., 5 F.3d 907, 909 (5th Cir. 1993); O'Brien v. R.J. O'Brien & Assoc., Inc., 998 F.2d 1394, 1398-1400 (7th Cir. 1993); Lederman v. United States, 131 F. Supp.2d 46, 58 (D.C. 2001), remanded on other grounds, 291 F.3d 36 (D.C.Cir. 2002); Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd., 985 F. Supp. 640, 642-643 (E.D.Va. 1997).

The Court therefore concludes that respondents waived the defense of lack of personal jurisdiction over respondent Lewis.*fn6 The Federal Rules of Civil Procedure, which respondents concede govern the issue,*fn7 do not countenance the maneuvering in which respondents have engaged.*fn8 Hence, the Court will proceed to the merits of petitioner's claim notwithstanding that, if not waived by respondents, there may be a genuine question whether this action against respondent Lewis, as custodian of petitioner, should proceed in this Court.

II. Factual Background

Petitioner was born in the Republic of Liberia on November 20, 1972, came to the United States with his family when he was eight years old, and has lived here continuously since then. Resp.Ex. 1. His mother is Liberian and his father is from Sierra Leone. Pet.Ex. A, Declaration of Seretse-Khama at ¶ 3. On August 21, 1990, he became a permanent lawful resident of the United States. On October 21, 1993, the Circuit Court of Alexandria, Virginia, convicted him of possession with intent to distribute cocaine, and sentenced him to eight years in prison on January 27, 1994. Id. at ¶ 8; see also Resp.Ex. 2. Before his incarceration, petitioner resided in northern Virginia and his sister, stepmother and stepbrothers currently live in northern Virginia. Id. at ¶¶ 9, 16.

Given his conviction of an aggravated felony, the INS initiated removal proceedings to deport petitioner pursuant to Section 237(a)(2)(A)(iii) and Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA" or "the Act"). Resp. Ex. 3. After an early release from his criminal sentence, the Virginia Department of Corrections transferred petitioner to the custody of the INS on August 3, 1998, where he was held without bond. One month later, on September 3, 1998, an Immigration Judge ordered petitioner deported to Liberia. Resp.Ex. 8. He did not appeal that order, which thus became administratively final on October 5, 1998. Id. Meanwhile, on September 30, 1998, the INS requested that the Liberian Embassy issue travel documents. Resp.Ex. 9. As a result, Abdulah K. Dunbar, the First Secretary and Consul of the Republic of Liberia Embassy, conducted a short interview of petitioner on October 10, 1998, concerning his knowledge and ties to Liberia. Resp.Ex. 10. Petitioner truthfully answered Dunbar's questions, and correctly stated the capital of Liberia and the president's name. Seretse-Khama Dec. ¶ 12. However, petitioner was unable to name the hospital or county where he was born, as he has not had any contact with his mother since he left Liberia at the age of eight. Id. at 12, ¶ 5. He also stated that he did not have any family in Liberia. Id.*fn9

More than three months after his interview, the Liberian Consulate still had not issued travel documents. On January 26, 1999, INS Deportation Officer Ashly Ocasio requested assistance from INS headquarters in obtaining the travel documents, but this request went unanswered. Resp.Ex. 10. On May 11, 1999, as mandated by its regulations, the INS conducted the first (of eventually five) Post-Order Custody Review of petitioner. Resp.Ex. 11. As a result, Officer Ocasio recommended petitioner's release from INS custody, stating that petitioner would not pose a threat to the community if released from INS custody and citing his "simple" charge of possession of cocaine with intent to distribute. Id. at p. 5. The Supervisory Detention Officer did not concur with Officer Ocasio's parole release recommendation, and petitioner remained in the custody of INS. Id. at p. 6.

Custody reviews were also conducted on July 30, 1999, November 15, 2000, June 25, 2001, and June 1, 2002. In the report of the July 30, 1999, custody review, under "Can a Travel Document be Obtained," Officer Ocasio checked the box "No." Resp.Ex. 12, at p. 1. She stated:

I have spoken with the detainee on numerous occasions. I have concluded that he literally has no family in Liberia. The Liberia Embassy does not want to send back. Unfortunately, without the endorsement of the Liberia Embassy, getting a document is impossible. . . .

Id. at 4. Again, Officer Ocasio recommended release, and this time the Supervisory Detention and Deportation Officer concurred with her recommendation, and the final custody determination was to release petitioner under an order of supervision. Id. at 5. There is nothing in the record explaining why petitioner remained detained and was not released at that time.

However, nearly three months following this recommendation of release, petitioner assaulted a jail employee and destroyed property on September 29, 1999. Resp. Ex. 13. He was charged with attempted injury of correctional facility staff and destruction of property. Id. On February 11, 2000, he pled guilty to the charges, and received a two-year sentence with one year and six months suspended, for an effective sentence of only six months. Resp.Ex. 13 and Ex. 14.*fn10

On November 16, 2000, Officer Ocasio conducted a telephonic interview of petitioner for another custody review. For the third time, Officer Ocasio recommended release, under supervision with $12,000 bond. Resp.Ex. 22. Her report stated:

The Liberian Consulate verified that the subject is Liberian, however, will not issue a travel document. . . . The Embassy is of the belief that the subject really has no ties to Liberia. He came to the U.S. as a child and does not speak the language. The Embassy is of the opinion that the subject will become a public charge because there is absolutely no family in Liberia.

Id. at p. 1.*fn11 Similarly, in a custody review conducted on June 25, 2001, the INS again noted that travel documents would not be issued: "The Liberian Consulate verified that subject is from Liberia but they will not issue document because subject has no ties in Liberia and will become a public charge if returned." Resp.Ex. 26, at p. 1. Petitioner's detention thus continued.

By late June 2001, therefore, petitioner had been detained by the INS awaiting deportation for almost three years following his transfer to INS custody on August 3, 1998. Even excluding his six-month sentence for his prison assault offense, by that point he had been detained by the INS for almost two and one-half years, the last ten months of which followed his assault sentence. On June 28, 2001, the United States Supreme Court announced its ruling in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The Court held that the Attorney General could not indefinitely detain lawfully admitted, but subsequently ordered removed, aliens during the post-removal period (i.e., the time after a 90-day statutory removal period) while they awaited deportation. Instead, the Court limited detention to no more than a presumptive "reasonable time" of six months, unless the government can establish that there is a "significant likelihood of removal in the reasonably foreseeable future." 533 U.S. at 701, 121 S.Ct. 2491.

Several months after the decision in Zadvydas, the INS again continued petitioner's detention on October 11, 2001. Resp.Ex. 27. Without explanation, that decision informed him that "[t]he INS is pending receipt of your travel document and you will be removed in the reasonably foreseeable future." Id. However, the receipt of travel documents was not "pending." Instead, on December 10, 2001, Neil Acvi, a Supervisory Deportation Officer for INS, wrote a letter to the Consulate General of the Republic of Liberia seeking travel documents for petitioner. Resp.Ex. 28. "This letter," he wrote, "constitutes a third written request for issuance of a travel document for Donald Seretse-Khama." Id. The letter stated:

On August 14, 2001, the [INS] left a message regarding the status of issuing a travel document. Your office did not return our call. Mr. Dunbar, the consulate at the time, interviewed Mr. Seretse-Khama on two occasions. Mr. Dunbar explained that he could not issue a travel document for two reasons. The first is that Mr. Seretse-Khama stated that he did not want to be deported and that he did not have family in Liberia. As of this date, no travel document has been issued. It is now incumbent upon the [INS] to carry out this deportation order.

Id.

On May 16, 2002, petitioner filed his petition for writ of habeas corpus under 28 U.S.C. § 2241, along with a motion for a preliminary injunction and a temporary restraining order. Two weeks later, on June 1, 2002, the INS conducted another custody review of petitioner. See Resp.Ex. 29 and 30. Officer Ocasio, whose previous reviews all recommended petitioner's release, conducted this custody review as well. This time, however, she recommended his continued custody, stating that petitioner "has not made an attempt to find an alternate country to be removed to. In addition, he still remains positioned on not returning to Liberia." Resp.Ex. 29, at p. 5. Officer Ocasio further explained:

[T]he Service needs to vigorously pursue the issuance of a travel document and seek more assistance from HQ. The last attempt was approximately 8 months ago. Several major issues concerning foreign nationals has arisen over the last eight months and I believe that the Service (HQ) will be successful in obtaining a travel document. . . . Based on the subject's behavior while in Service custody and the belief that a document is still obtainable with the assistance of HQ, it is my recommendation that he remain in custody.

Id. Consequently, the INS sent petitioner a letter stating its decision not to release him:

The [INS] submitted a request to the Embassy of Liberia on September 30, 1998 for the issuance of a travel document. As a result of this request, you were interviewed on two different occasions. The [INS] submitted a new request December 10, 2001. After both interviews and the most recent request, the consulate informed the [INS] that you are in fact a citizen of Liberia. However, they were not willing to issue a travel document because you told the consulate that you did not want to go back to Liberia. By this action, you have actively worked to prevent your own departure from the United States. Under Section 241(a)(1)(C) of the Immigration and Nationality Act, you are required to timely make an application, on your own, for a travel document and to not act to prevent your removal. [Your] statements to the consulate violate this section. Therefore, your removal period under 241(a)(1)(A) is extended until you are in compliance.

Resp.Ex. 30, at p. 1 (emphasis in original). The letter added that "in the Service's experience, it is likely that a Liberian national may be removed to that country," noting that 47 persons had been deported back to Liberia in 2001 and the first quarter of 2002, with 45 deported in 2000, 38 in 1999, 49 in 1998, and 45 in 1997. "You have not provided any evidence that your case is an exception," the letter concluded. Id.

Hence, petitioner continues to be detained almost four years after his transfer to INS custody on August 3, 1998, which is over 22 months since his return to INS custody in September 2000 (after service of his six-month sentence for an assault offense while in detention) and well over a year after the Supreme Court's decision in Zadvydas. For the first time, in a custody review conducted after petitioner filed this action, the INS ...


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