United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 11, 2007
Charles R. Fulbruge III
Clerk
No. 06-30899
Summary Calendar
ALBERT ADEFEMI,
Petitioner-Appellant,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL; MICHAEL CHERTOFF,
SECRETARY, DEPARTMENT OF HOMELAND SECURITY; WILLIAM M. CLEARY,
Immigration Customs Enforcement Field Director; MARTIN HERRON,
Chief of Buffalo Federal Detention Facility; BUREAU OF
IMMIGRATION AND CUSTOMS ENFORCEMENT, New York/Atlanta Districts;
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
Respondents-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:05-CV-1861
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Albert Adefemi, immigration detainee # A90 358 688, appeals
following the district court’s dismissal of his 28 U.S.C. § 2241
petition, wherein he challenged his continued detention beyond the
presumptively reasonable six-month period following a final order
of removal. He also moves for the appointment of counsel. With
the benefit of liberal construction, he argues that his continued
*
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this opinion should not be published and is not precedent except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.
No. 06-30899
-2-
detention is unlawful under Zadvydas v. Davis, 533 U.S. 678 (2001),
that there is no reasonable likelihood of his removal in the
foreseeable future, and that the district court erroneously denied
his request for injunctive relief.
The Supreme Court held in Zadvydas, 533 U.S. at 701, that it
is presumptively constitutional for an alien to be detained for six
months after a final order of removal. The Court created no
specific limits on detention, however, because “‘an alien may be
held in confinement until it has been determined that there is no
significant likelihood of removal in the reasonably foreseeable
future.’” Id. An alien must provide good reason to believe that
there is no significant likelihood of removal, and the Government
must then respond with evidence sufficient to rebut that showing.
Id.
Adefemi has remained in custody following the final judicial
review of his removal order on September 28, 2004. See Adefemi v.
Ashcroft, 386 F.3d 1022, 1024 (11th Cir. 2004)(en banc). The
Government presented evidence that Adefemi’s removal was imminent
in January 2006 when it obtained travel documents from the Nigerian
government. It was unable to remove Adefemi, however, because
Adefemi had moved to reopen his immigration proceedings, and the
Bureau of Immigration Appeals had granted his request to stay the
removal. The Government presented evidence that travel documents
would be reissued upon completion of the immigration proceedings.
Based on the current appellate record, Adefemi has failed to
No. 06-30899
-3-
show good reason to believe that there is no likelihood of his
removal. See Zadvydas, 533 U.S. at 701; cf. Demore v. Kim, 538
U.S. 510, 531 (2003). We note that Adefemi’s immigration
proceedings, which have since been reopened, remain ongoing and
that he has presented alleged new evidence along with his reply
brief purporting to show that the Nigerian government will not
issue travel documents for his repatriation. This court does not
receive new evidence, however, and we do not ordinarily review new
arguments raised in a reply brief. See Cavallini v. State Farm
Mut. Auto Ins. Co., 44 F.3d 256, 260 n.9 (5th Cir. 1995); United
States v. Flores, 887 F.2d 543, 546 (5th Cir. 1989); Strain v.
Harrelson Rubber Co., 742 F.2d 888, 889 n.2 (5th Cir. 1984).
Adefemi remains free to file a new § 2241 petition should he
develop good reason to believe, in light of changed circumstances
or new evidence, that his removal is not likely in the reasonably
foreseeable future. Adefemi’s motion for the appointment of
counsel is denied.
AFFIRMED. MOTION DENIED.