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LIN v. ASHCROFT

April 15, 2004.

LIN, FENG, A45-889-399 Petitioner,
v.
UNITED STATES ATTORNEY GENERAL JOHN ASHCROFT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, and WARDEN OF YORK COUNTY PRISON, YORK, PA, Respondents



The opinion of the court was delivered by: CHARLES SMITH, Magistrate Judge

REPORT AND RECOMMENDATION

Currently pending before the Court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2241, by a prisoner in custody of the Immigration and Customs Enforcement agency ("ICE"). For the reasons which follow, the Court recommends that the petition be denied without prejudice.

I. PROCEDURAL HISTORY

  Petitioner, a native of the People's Republic of China entered the United states as an immigrant on November 5, 1997, using a valid passport. At the time, he was almost twenty years old. Subsequently, on January 24, 2003, he was convicted in the Philadelphia County Court of Common Pleas of aggravated assault, simple assault, criminal conspiracy, reckless endangerment and possessing an instrument of crime, and sentenced to a term of nine to twenty-three months imprisonment, followed by five years of reporting probation.

  After his release by the state authorities, petitioner was taken into custody by ICE pending removal proceedings. On October 8, 2003, Immigration Judge Grace A. Sease ordered petitioner removed to China. Petitioner waived his appeal rights, making the deportation order administratively final.

  On January 22, 2004, after a review of petitioner's custody status, ICE decided to deny his request for release on parole, for failing to show that he was neither a flight risk nor a threat to society. Petitioner thereafter filed the present Petition for Writ of Habeas Corpus on March 15, 2004, alleging that his continued detention violates his constitutional rights as established in prevailing Supreme Court jurisprudence.

 II. DISCUSSION

  The core of petitioner's claim contests the fact that he has been in the custody of ICE for over six months since his initial detention in August 2003. He contends that he is not likely to be removed to the People's Republic of China or any other country, since no country has yet agreed to accept him. As the United States Supreme Court has established a six-month presumptively reasonable period for detention of post-removal order detainees, petitioner now asserts that he must be paroled.

  Pursuant to the governing provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), aliens under a final order of deportation may be detained under the authority of 8 U.S.C. § 1231. Once an alien has a final order of deportation, the Attorney General has ninety days in which to execute the deportation and secure removal. 8 U.S.C. § 1231(a)(1). This "removal period" begins on the latest of (i) the date the order of removal becomes administratively final; (ii) if the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order; or (iii) if the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement. 8 U.S.C. § 1231(a)(1). "Under no circumstance during the removal period shall the Attorney General release an alien who has been found inadmissible [due to his conviction of an aggravated felony] . . ." 8 U.S.C. § 1231 (a)(2). Once the removal period expires, however, the alien must be released on bond, under 8 U.S.C. § 1231(3).

  Should the Attorney General be unable to secure the alien's removal within that ninety-day period of time, however, § 1231(a)(6) expressly authorizes continued detention in certain cases. Specifically,
An alien ordered removed who is inadmissible under section 1182 of this title, removable [for violations of nonimmigrant status or entry conditions, violations of criminal laws, or threats to national security] or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).
8 U.S.C. § 1231(a)(6).

  In the seminal case of Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001), the United States Supreme Court considered the scope of the government's power under section 1231(a)(6). Two permanent legal residents were ordered removed due to their criminal convictions. Id. at 684-686. Upon the expiration of the ninety day removal period, however, no country was willing to accept them, making their immediate deportation impossible. Id. Rather than release them on parole, the government continued the aliens in custody under § 1231(a)(6). Id. The petitioners subsequently challenged the legality of their seemingly indefinite detention. Id. at 686.

  "[I]nterpreting the statute to avoid a serious constitutional threat, [the Court] conclude[d] that, once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." Id. at 699. Specifically, the court imposed a presumptive period of six months during which detention would be deemed reasonable. Id. at 701. The Court emphasized, however, that "[t]his 6-month presumption . . . 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. at 701. Thereafter, "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." Id. For detention to remain reasonable, a sliding scale test applies. "[A]s the period of prior post-removal confinement grows, what counts as the `reasonably foreseeable future' conversely would have to shrink." Id.

  In the case at bar, petitioner's six-month presumptive release period has expired as of the issuance of this decision. His order of detention became administratively final on October 8, 2003, when he waived his right to appeal, and, to date, he has yet to be either repatriated or released.*fn1 As noted above, however, in order for a court to find that detention beyond the six month period after the removal period has lapsed is unreasonable, a petitioner must provide "good reason that there is no significant likelihood of removal in the reasonably foreseeable future" [and] the government must then provide "evidence sufficient to rebut [the detainee's] showing". Id. Thus, we must first determine whether petitioner has met this burden of supplying "good reason" that there is no significant likelihood of his removal to the People's Republic of China in the reasonably foreseeable future.

  Addressing a similar claim, this Court in Nma v. Ridge, 286 F. Supp.2d 469 (E.D. Pa. 2003), remarked that courts have generally found "no significant likelihood of removal" in four types of cases: (1) "where no country will accept the detainee"; (2) "where the detainee's country of origin refuses to issue a travel document for the detainee"; (3) "where there is no removal agreement between the detainee's country of origin and the U.S."; and (4) "where there was no definitive answer from the target country after several months as to whether it would issue travel papers for a detainee." Id. at 475 (citing cases). In that case, the Liberian Consulate affirmed that it intended to issue a travel document to petitioner and had issued a travel document to the petitioner twice in the past. Id. The court found that the mere fact that the Consulate could not do so until the interim government was in place was of no moment to its ...


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