Dover v. Holder
1:11-cv-00508
W.D.N.Y.Sep 12, 2011Background
- Dover, a Guyanese citizen, is in continuous immigration custody since May 4, 2010 awaiting final removal to Guyana.
- He accumulated three drug offenses in 1996–1997, leading to later removal proceedings and a 2005 removal order that was challenged.
- Respondents opposed release, citing his criminal history and fugitive status from 2008 when he failed to surrender.
- Guyana has delayed issuing a travel document partly due to awaiting the outcome of Dover’s removal challenges; a travel document is expected if higher court rulings are unfavorable.
- Respondents rely on an informal forbearance policy with the Second Circuit, arguing removal will occur once that pending matter resolves; the court denies the petition and notes possible limited detention under statutory framework.
- The order of detention and related habeas corpus petition were decided on paper; the court applies Zadvydas’ six-month presumption but finds circumstances do not warrant indefinite detention at this stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dover’s detention beyond six months is constitutionally permissible | Dover argues removal is not reasonably foreseeable, warranting release | Respondents contend detention is justified by flight risk and community danger | Detention remains permissible at this stage, no indefinite detention yet |
| Whether forbearance policy and pending Second Circuit matters justify continued detention | Delays due to Second Circuit proceedings mean removal is not reasonably foreseeable | Forbearance policy and pending rulings indicate removal will occur; detention justified | Continued detention warranted given pending rulings and flight risk |
| Whether the court has authority to review detention while not reviewing underlying removal proceedings | Petition asserts constitutional issues with detention timing | Under 8 U.S.C. §1252(a)(5), review of removal order is exclusive to courts of appeals; habeas concerns limited | Court limits review to detention length and constitutionality under habeas, not underlying removal merits |
Key Cases Cited
- Zadvydas v. Davis, 533 U.S. 678 (2001) (constitutional limits on post-removal detention; six-month presumptively reasonable period)