IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30615
EDWIN MESADIEU,
Petitioner-Appellee,
versus
IMMIGRATION AND NATURALIZATION SERVICE
Respondent-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
April 15, 2002
Before REYNALDO G. GARZA, HIGGINBOTHAM, and SMITH, Circuit Judges.
PER CURIAM:*
The Immigration and Naturalization Service appeals the
district court’s grant of Edwin Mesadieu’s petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. In light of the
Supreme Court’s decision in Zadvydas v. Davis,1 and this court’s
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1
121 S.Ct. 2491 (2001).
decision on remand from the Supreme Court in that same case,2 we
affirm.
I
Edwin Mesadieu was born in the Bahamas in September 1973 to
Haitian parents. He entered the United States most recently as a
resident alien in 1990. In 1994 Mesadieu pled guilty to charges
brought by the state of Florida arising out of a domestic dispute
between Mesadieu and his then-girlfriend. These charges included:
aggravated assault, throwing a deadly missile into an occupied
vehicle, and corruption by threat. He received probation. In
March 1995, while on probation, Mesadieu was convicted of assault
with a deadly weapon and shooting into a dwelling house and was
sentenced to 18 months’ imprisonment and revocation of his earlier
probation.
As a result of these convictions, the INS issued an order to
show cause charging Mesadieu with two crimes of moral turpitude not
arising out of a single scheme of criminal conduct. On September
15, 1996 Mesadieu was ordered deported to the Bahamas. The Board
of Immigration Appeals remanded the case for consideration of a
waiver of deportation. In the meantime, Mesadieu was transferred
to INS custody after the completion of his prison term in April
1996. After further unsuccessful proceedings, Mesadieu’s
deportation order became final on March 14, 1997.
2
No. 97-31345, 2002 WL 385663 (5th Cir. Mar. 12, 2002).
2
Since then, the INS has unsuccessfully attempted to deport
Mesadieu to the Bahamas and to Haiti. Both countries have rejected
his request for citizenship or travel documents. Mesadieu
requested release following these failures, but his request was
denied. The INS continued to detain Mesadieu on the authority of
8 U.S.C. § 1231(a)(6), which allows detention of an alien who is
removable based on multiple criminal convictions or “who has been
determined to be a risk to the community or unlikely to comply with
the order of removal.”3 The INS conducted several reviews of
Mesadieu’s detention, at all relevant points concluding that he
posed a high risk of recidivism and was a threat to the community.
In January 1999 Mesadieu filed a petition under 28 U.S.C. § 2241
challenging his continued detention on the ground that, since it
was impossible to effectuate the deportation order, the detention
violated his due process rights. The district court granted his
petition,4 and the INS now appeals.
II
We review the district court’s findings of fact for clear
error and its conclusions of law de novo.5 In Zadvydas,6 the
3
8 U.S.C. § 1231(a)(6).
4
Mesadieu was released on April 13, 2000. The INS first sought to place
Mesadieu in a nine-month rehabilitation program, but the district court balked
at the length of the program and refused to approve Mesadieu’s participation.
5
Gochicoa v. Johnson, 238 F.3d 278, 284 (5th Cir. 2000).
6
The INS, in its briefs to this court before the Supreme Court had decided
Zadvydas, argued persuasively that this case was factually indistinguishable.
Appellant’s Brief at 19-20. We agree.
3
Supreme Court, reading § 1231(a)(6) so as to avoid a “serious
constitutional threat”7 concluded that detention was not authorized
under the statute when removal was “no longer reasonably
foreseeable.”8 The Court also endorsed a presumption that the
reasonable period of detention was six months after the beginning
of the removal period.9 This presumption places the burden on the
Government to show that “there is no significant likelihood of
removal in the reasonably foreseeable future ....”10 Furthermore,
“as the period of prior post-removal confinement grows, what counts
as the ‘reasonably foreseeable future’ conversely would have to
shrink.”11
On remand from the Supreme Court, this court determined in
Zadvydas that the district court’s grant of the petition should be
affirmed. We based our decision on the fact that Zadvydas had been
detained by the INS for more than three years after the expiration
of the removal period,12 creating a presumption, which the INS
failed to rebut, that there was no significant likelihood of
removal in the reasonably foreseeable future. Similarly here, the
7
Zadvydas, 121 S.Ct. at 2503.
8
Id.
9
Zadvydas, 2002 WL 385663 at *4.
10
Zadvydas, 121 S.Ct. at 2505.
11
Id.
12
Zadvydas, 2002 WL 385663 at *5.
4
order of deportation became final in May 1997 (at which time the
90-day period began to run), and Mesadieu filed his § 2241 petition
in district court January 1999, which was granted on March 14,
2000. At the time of his filing, Mesadieu had been in INS custody
for approximately 20 months, well in excess of the 6 required for
the operation of the presumption in his favor. The INS vaguely
refers to continuing efforts to deport Mesadieu, but there is no
evidence in the record sufficient to rebut the presumption.13 It
is clear that there is no significant likelihood that Mesadieu
could be deported in the reasonably foreseeable future, especially
given the Supreme Court’s admonition that the time frame we are to
consider grows shorter with the length of prior post-removal
confinement.
In keeping with this court’s decision in Zadvydas, we affirm
the judgment of the district court with the following modification.
The district court’s judgment “shall not of itself preclude the INS
from seeking to return [Mesadieu] to INS custody (if that be
otherwise shown to be appropriate) upon a showing that ... there
has then become a substantial likelihood of removal in the
reasonably foreseeable future ....”14
13
The INS offers evidence that Haiti recently began repatriating its
citizens after a period during which it was not doing so. This evidence is
offered for the first time on appeal, and we may not consider it. Theriot v.
Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). If Haiti at some
point in the future indicates its willingness to accept Mesadieu, then the INS
may seek to return him to custody. Zadvydas, 2002 WL 385663 at *5.
14
Id.
5
JUDGMENT AFFIRMED AS MODIFIED.
6