The opinion of the court was delivered by: Jan E. Dubois, District Judge.
Presently before the Court is petitioner Heng Meng Lin's Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, challenging his continued detention by the Immigration and Naturalization Service ("INS") pending his removal to the People's Republic of China. The Petition is fully briefed. For the reasons set forth in this Memorandum, the Court grants the Petition in part — the INS is ordered to address petitioner's request for release pursuant to the procedures set forth in 8 C.F.R. § 241.13 — and denies the Petition without prejudice in all other respects.
Petitioner, Heng Men Lin ("Lin"), is a native and citizen of the People's Republic of China who entered the United States on or about September 1992, without inspection by an immigration officer. Lin was never paroled into the United States*fn1 and his application for asylum was denied in 1993. On April 30, 2001, Lin was convicted of smuggling Chinese aliens into the United States in the United States District Court for the Southern District of New York and sentenced, inter alia, to a term of imprisonment of six (6) months.
Upon completion of his prison sentence, Lin was taken into custody by the INS on September 27, 2001. On that same day, Lin was issued a Notice which advised him that he was removable from the United States as an alien present without being admitted or paroled pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Lin was ordered removed from the United States to the People's Republic of China on January 27, 2002, by a United States Immigration Judge. Lin did not appeal the order and subsequently provided a Chinese passport to the INS. The agency scheduled Lin's removal for March 26, 2002.
On March 15, 2002, the INS sent Lin's passport to the Chinese Consulate-General in New York, requesting travel documents for Lin and two officers who would be escorting him to China; that request was denied. The Consulate-General claimed that Lin's passport was "bad." Accordingly, Lin's flight to China scheduled for March 26, 2002, was cancelled. Other attempts to secure visas for Lin and the two escorting officers from the Chinese Consulate-General were met with no response.
On June 27, 2002, five months after he was ordered removed to China, Lin submitted a request for release to the INS Headquarters Post-Order Detention Union ("HQPDU") pursuant to 8 C.F.R. § 241.13,*fn2 claiming, inter alia, that his removal to China was not likely in the reasonably foreseeable future because of China's refusal to issue him travel documents. Lin then filed the instant Petition in this Court on August 6, 2002, while detained at Berks County Prison, Pennsylvania. Lin is currently being held in INS custody at the Tangipahoa Parish Jail in Louisiana.
Lin does not challenge the order of January 27, 2002, removing him to China; indeed, he has cooperated with the INS's efforts to remove him by providing his Chinese passport. Rather, Lin argues that the INS's failure to promptly remove him from the United States, resulting in his continued detention in INS custody, is violative of due process. Lin asserts that because the INS has been unable to obtain the travel documents necessary for his removal, there is no likelihood that he will be removed to China in the reasonably foreseeable future and his detention in the United States will be indefinite. Lin argues that although the INS have made "efforts" to obtain the necessary travel documents, his continued detention is constitutionally impermissible under the United States Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678 (2001).
The detention, release and removal of aliens ordered removed from the United States is governed by the provisions of 8 U.S.C. § 1231. Pursuant to 8 U.S.C. § 1231(a), the Attorney General shall remove an alien from the United States within ninety (90) days after the date that the removal becomes "administratively final." During the 90-day "removal period," detention of the alien is mandatory. 8 U.S.C. § 1231(a)(2). At the conclusion of the 90-day period, the alien may be released under the Attorney General's supervision, 8 U.S.C. § 1231(a)(3), or detained beyond the 90-day removal period if he is "inadmissible under section 1182 of this title." 8 U.S.C. § 1231(a)(6).*fn3
In Zadvydas, the Supreme Court addressed the issue of whether 8 U.S.C. § 1231(a)(6) authorizes the Attorney General to detain a removable alien indefinitely beyond the 90-day period. Reasoning that an alien's indefinite detention "would raise serious constitutional concerns," 533 U.S. at 682, the Court concluded that the statute "limits an alien's post-removal-period detention to a period reasonably necessary to bring about the alien's removal from the United States. It does not permit indefinite detention." Id. at 689. The Court stated that "once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." Id. at 699. The Supreme Court held in Zadvydas that a period of six (6) months is a presumptively reasonable period of detention. Id. at 701. The Court further ruled that "[a]fter this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of post-removal confinement grows, what counts as the `reasonably foreseeable future' conversely would have to shrink." Id. The Court made clear, however, that this "does not mean that every alien not removed must be released after six months. To the contrary, 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.
B. The Zadvydas Decision Applies to Lin
The Government contends that the Zadvydas decision is inapplicable because Lin entered the United States without inspection in 1992 and is thus an "excludable" or "inadmissible" alien under 8 U.S.C. § 1182(a)(6)(A)(i). Lin responds by arguing that although he entered the United States illegally in 1992, because he effected entry into the United States he ...