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Clarke v. Kuplinski

United States District Court, E.D. Virginia, Richmond Division

April 26, 2016

JOHN R. KUPLINSKI, [1] et al. Respondents.


Robert E. Payne, Senior United States District Judge

This matter is before the Court pursuant to Petitioner Andre Richard Clarke's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 ("§ 2241 Petition, " ECF No. 1). Respondents have filed a Response. (ECF No. 9.) Clarke has filed a Reply. (ECF No. 10.) The matter is ripe for disposition.

In the § 2241 Petition, Clarke, an alien detainee in the custody of the United States Immigration and Customs Enforcement ("ICE"), asserts that his continued detention is unlawful under Zadvydas v. Davis, 533 U.S. 678 (2001), because "[t]he government simply has not met its burden of proving a significant likelihood of removal in the reasonably foreseeable future." (§ 2241 Pet. 11.) Respondents assert that Clarke's § 2241 Petition should be denied because "Respondents are taking active steps to effectuate the removal of [Clarke] and anticipate that [Clarke] will be removed to Jamaica within approximately 90 days." (Resp. 2.) For the following reasons, Clarke's § 2241 Petition (ECF No. 1) will be denied.


Clarke is a native and citizen of Jamaica. (§ 2241 Pet. 2.) Clarke entered the United States on a B-2 tourist/visitor visa on or about January 30, 1988. (Resp. Ex. 1 ("O'Neill Decl.") ¶ 8, ECF No. 9-1.) Clarke failed to "timely depart"; therefore, the former Immigration and Nationality Service ("INS") issued an Order to Show Cause on February 4, 1991. (Id.)

On April 9, 1991, an Immigration Judge ("IJ") granted Clarke voluntary departure and, in the alternative, issued an order of removal. (Id. ¶ 9.) Clarke failed to leave the United States. (Id.) Therefore, the order of removal became final on May 10, 1991. (Id.)

On March 13, 2014, Clarke was arrested by the Metropolitan District of Columbia Police Department for possession with intent to distribute cocaine/crack cocaine. (Id. ¶ 10.) Clarke was later convicted of the charge in the Superior Court for the District of Columbia, and was sentenced to 2 years and 33 0 days of imprisonment. (Id.) ICE took custody of Clarke on or about April 29, 2015. (Id. ¶ 11.)

On May 11, 2015, a deportation officer ("DO") began the process of obtaining a travel document for Clarke from Jamaica. (Id. ¶ 17.) The DO obtained the necessary paperwork and uploaded it to an electronic travel document database. (Id.) On May 12, 2015, a DO sent a copy of the paperwork to the Jamaican Embassy in Washington, D.C. (Id. ¶ 18.)

On or about May 26, 2015, "the Security Attache of the Jamaican Embassy interviewed [Clarke]." (Id. ¶ 20.) The Security Attache asked a DO for additional documents and advised the DO "that the issuance of a travel document was still pending." (Id.) On July 16, 2015, the Security Attache "advised it could not yet issue an Emergency Certificate (or travel document for [Clarke's] travel to Jamaica without a birth certificate or some other form of a Government of Jamaica-issued identification." (Id. ¶ 25.)

On July 21, 2015, a DO conducted an assessment of whether ICE should continue to detain Clarke, and completed a 90-day Post-Order Custody Review ("POCR"). (Id. ¶ 13.)[2] The DO recommended that ICE continue to detain Clarke while the Department of Homeland Security ("DHS") continued efforts to obtain a travel document from Jamaica. (Id. ¶ 13.) Clarke received notice of this decision on July 22, 2015. (Id.)

On August 5, 2015, a DO "gathered [Clarke's] biographical information, photos, and fingerprints" and provided them to the Foreign Service National ("FSN") Investigator for Homeland Security Investigations in Kingston Parrish, Jamaica, to attempt to verify Clarke's identity locally. (Id. ¶¶ 26-27.) On September 28, 2015, the DO "received notification . . . that the Jamaican Embassy was not able to locate birth records matching the data [Clarke] provided." (Id. ¶ 30.)

On October 9, 2015, the DO learned that the Jamaican Embassy could not provide a travel document "until [Clarke's] nationality could be verified." (Id. ¶ 31.) The DO "ordered [Clarke's] mother's A-file to determine whether it contained information [Clarke] had failed to provide ICE." (Id.) The DO was able to locate Clarke's passport number in the A-file. (Id.) Subsequently, the DO sent Clarke's passport number to the Jamaican Embassy. (Id. ¶ 32.)

On October 22, 2015, the Attache for Jamaica informed the DO that "he would not be able to verify [Clarke's] citizenship . . . based on a passport number." (Id. ¶ 33.) The Attache indicated "that the best form of verification is through a birth certificate or record." (Id.) The DO then sent Clarke's passport number to an FSN investigator in Jamaica. (Id.) The investigator "immediately notified [the DO] that it may take some time to verify due to the passport being issued prior to computerization of these records in Jamaica." (Id.)

On October 27, 2015, a DO assigned to Clarke's case completed a Transfer Checklist and provided it to ICE Removal and International Operations ("RIO") so that RIO could make a decision regarding Clarke's continued detention. (Id. ¶ 14.)[3]On November 13, 2015, RIO determined that Clarke would remain ...

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