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Sokpa-Anku v. Paget

United States District Court, D. Minnesota

June 8, 2018

CHARLES KWADZO SOKPA-ANKU, A098-758-438, Petitioner,
v.
JOE PAGET, Supervisor of the Immigration Detention Facility; JACK G. SERIER, Ramsey County Sheriff; MICHAEL FEINBERG, Special Agent in Charge, U.S. Immigration & Customs Enforcement; SCOTT BANIECKE, Filed Officer Director, ICE; THOMAS D. HOMAN, Director of ICE; JOHN F. KELLY, Secretary of the Department of Homeland Security DHS; and JEFFERSON B. SESSIONS, U.S. Attorney General; Respondents.

          REPORT AND RECOMMENDATION

          KATHERINE MENENDEZ UNITED STATES MAGISTRATE JUDGE

         Charles Kwadzo Sokpa-Anku is a native and citizen of Ghana who is subject to a final order of removal from the United States. He has been in the continuous custody of immigration authorities since September 14, 2016. He seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and Zadvydas v. Davis, 533 U.S. 678 (2001), requiring his release pending his removal. [Pet., ECF No. 1.] The Respondents argue that Mr. Sokpa-Anku is not entitled to a writ of habeas corpus because there is a substantial likelihood of his removal in the reasonably foreseeable future. [See, e.g., Resp. to Pet., ECF No. 11.] For the reasons that follow, the Court recommends that Mr. Sokpa-Anku's petition be granted.

         I. Background

         Immigration authorities have had a difficult time removing Mr. Sokpa-Anku from the United States. Since his removal order, he has been in custody for two separate and lengthy periods of detention. On one occasion, he failed to comply with immigration officials' efforts to remove him from the United States, but he has been in custody for more than twenty-one months since that single incident of non-compliance occurred. There is no demonstration on the record before the Court that immigration authorities are any closer to obtaining a current travel document from Ghana for Mr. Sokpa-Anku than they were over a year ago.

         First Period of Post-Remova l-Order Detention

         Sometime after Mr. Sokpa-Anku arrived in the United States legally, he was “convicted of three counts of Medical Assistance Fraud and Attempted Theft of Public Funds” in state court and was ordered to pay restitution. [Pet. ¶ 16.] United States Immigration & Customs Enforcement (“ICE”) officials took him into custody on March 5, 2015 for removal proceedings. [Id. ¶ 17.] On May 7, 2015, an Immigration Judge denied Mr. Sokpa-Anku's request to terminate the removal proceedings and the Board of Immigration Appeals dismissed his appeal. [Id. ¶ 19.] The removal order therefore became final on September 11, 2015. [Id.]

         During this first period of detention, Mr. Sokpa-Anku remained in ICE custody for approximately sixteen months, almost nine months of which was after the final order of removal. In June 2016, shortly after he filed a habeas petition challenging the length of detention, ICE released him on conditions of supervision. [Pet. ¶ 20-21.]

         Second Period of Detention and Failure to Comply

         ICE detained Mr. Sokpa-Anku again on September 14, 2016 after it acquired Ghanaian travel documents that would enable his deportation. [Pet. ¶ 22.] ICE attempted to remove Mr. Sokpa-Anku from the United States on September 20, 2016, at the Minneapolis-St. Paul International Airport, but he did not board the plane. [Id. ¶ 23; Decl. of Xiong Lee (“Lee Decl.”) ¶ 21, ECF No. 12.] According to Respondents, he “deliberately refused to comply with ICE Officers by physically resisting and refusing to board his flight.” [Lee Decl. ¶ 21.] Mr. Sokpa-Anku asserts that he did not physically struggle with ICE agents, but he stopped walking toward the gate and told the agents he would not board the plane. [Pet'r Decl. (May 23, 2017) ¶¶ 15-18, ECF No. 15 at 8-11.] Six days after the failed removal attempt, the Ghana Embassy invalidated Mr. Sokpa-Anku's travel document because he had a pending proceeding in the Minnesota Court of Appeals for post-conviction relief.[1] [Lee Decl. ¶ 22.]

         Because he did not board the plane on September 20, 2016, ICE served him with a warning for failure to depart on October 7, 2016 and warned him of the potential consequences of continued refusal to comply with efforts to remove him to Ghana. [Lee Decl. ¶ 25.] In December 2016, because he had been in post-removal-order detention since September 14, 2016, ICE served Mr. Sokpa-Anku with a custody review decision advising him that he would remain in custody beyond the expiration of the 90-day removal period. [Lee Decl. ¶ 28.] ICE was “continuing efforts to obtain a travel document, ” so it concluded that “there was a significant likelihood of removal in the reasonably foreseeable future. . . .” [Lee Decl. ¶ 28.] ICE issued monthly notices of failure to comply with removal efforts between November 2016 and May 2017. [Lee Decl. ¶¶ 29-34; Pet'r's Exs.C-H, ECF No. 1-1 at 6-17.; Pet'r's Ex. I, ECF No. 15.] However, there is no allegation that after refusing to board the plane on September 20, 2016, Mr. Sokpa-Anku ever again willfully refused to comply with efforts to remove him from the United States. Indeed, the record demonstrates that both before and after September of 2016, Mr. Sokpa-Anku complied with ICE's efforts to remove him. [Pet'r Decl. ¶¶ 20, 28.]

         ICE's Continued Removal E forts

         As noted above, Ghana issued a travel document for Mr. Sokpa-Anku on August 8, 2016, but on September 26, 2016, it cancelled that travel document “pending the outcome of his post-conviction relief hearing with the MN Court of Appeals.” [Lee Decl. ¶¶ 17, 22.] The Respondents represent that on April 26, 2017, about two weeks after he filed his second habeas petition commencing this case, the Consulate General of Ghana agreed to issue a travel document for Mr. Sokpa-Anku. [Lee Decl. ¶ 35.]

         On August 7, 2017, Mr. Sokpa-Anku received a notice from ICE that it had decided to continue his detention because ICE was working with the Government of Ghana to obtain a travel document. [Letter from B. Casper Sanches to Menendez, M.J. (Sept. 22, 2017), ECF No. 17.] ICE transferred him from the Sherburne County Detention Facility to the Pine Prairie ICE Processing Center in Pine Prairie, Louisiana. [Id.] Mr. Sokpa-Anku was told that this transfer was due to a lack of bed space, not to effect his removal. [Id.] Mr. Sokpa-Anku was transferred to various other facilities between June and September of 2017. [Letter from B. Casper Sanchez to Menendez, M.J. (Dec. 13, 2017), ECF No. 20.] These transfers inexplicably included: (1) a June 6, 2017 transfer from Minnesota to Louisiana; (2) a June 7, 2017 tranfer from Louisiana to Arizona; (3) a June 15, 2017 transfer from Airzona back to Louisiana; (4) a June 20, 2017 transfer from Louisiana back to Minnesota; (5) a September 26, 2017 transfer from Pine Prairie, Louisiana, to Jena, Louisiana; and (6) a September 27, 2017 transfer to the Etowah Detention Center in Alabama. [Id.]

         On October 2, 2017, in a letter from Respondents' counsel, Respondents asserted that ICE was “continuing its efforts to have the government of Ghana reissue the travel document for Mr. Sokpa-Anku.” [Letter from A. Voss to Menendez, M.J. (Oct. 2, 2017), ECF No. 19.]

         Despite not having a travel document in hand, Respondents assert that they have scheduled Mr. Sokpa-Anku on two charter flights to Ghana, though they have failed to ever remove him. The ICE official supervising the deportation officer assigned to Mr. Sokpa-Anku's case, Tonita Dupard North, states: “[o]n May 12, 2017, ICE ERO Headquarters Removal and International Operations advised the local ICE ERO that the Embassy of Ghana would be issuing a travel document.” [Decl. of Tonita Dupard North (“North Decl.”) ¶ 4.] Still waiting on a travel document about a month later, Mr. Sokpa-Anku “was scheduled for a charter flight[] for June 13, 2017.” However, one day before the scheduled flight his name was removed from the list of passengers because he had applied for a stay of removal with the United States Supreme Court.[2] [North Decl. ΒΆΒΆ 5-7.] There is no ...


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