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United States District Court, E.D. Pennsylvania

April 15, 2004.

LIN, FENG, A45-889-399 Petitioner,

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


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.


  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.


  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 clearly stated intent to repatriate the petitioner. Id. Accordingly, the court declined to find no significant likelihood of removal in the reasonably foreseeable future and, in turn, rejected petitioner's habeas petition. Id. at 475-476.

  In the matter before us, petitioner states only that he is not likely to be removed to the People's Republic of China, or any other country, as no country has agreed to accept him so far, despite the fact that he has been in custody since October 8, 2003. In response, the government contends that ICE is currently seeking to procure a travel document for petitioner. More importantly, under the "Officer's Comments" section of petitioner's Post-Order Custody Review Worksheet, it states that "China will issue travel documents on subjects that have recently (in their adult years) entered into the US, and are found removable." Response, Exhibit B at 6.

  In addition, the government proclaims that petitioner "himself has the keys to the prison door." Response at p. 6. Specifically, it explains that petitioner entered the United States with a valid Chinese passport, but has made no effort to surrender this document, thus advancing the removal process. The Ninth Circuit has recognized that "Zadvydas does not save an alien who fails to provide requested documentation to effectuate his removal." Pelich v. INS, 329 F.3d 1057, 1060 (9th Cir. 2003). As such, "when an alien refuses to cooperate fully and honestly with officials to secure travel documents from a foreign government, the alien cannot meet his or her burden to show there is no significant likelihood of removal in the reasonably foreseeable future." Lema v. I. N. S., 341 F.3d 853, 856 (9th Cir. 2003); see also U.S. ex rel. Kovalev v. Ashcroft, 71 Fed. Appx. 919, 924 (3d Cir. 2003) (citing Pelich with approval).*fn2

  In short, it appears that petitioner has failed to meet his burden of showing that his deportation to the People's Republic of China is unlikely in the reasonably foreseeable future. His claims that United States will be unable to repatriate him are not only unsupported, but are, in fact, undermined by the immigration officer's statement that China will accept its nationals under an order of removal and by the fact that petitioner possesses a valid travel document but refuses to surrender it to ICE officials. As such, we defer to the statements from the executive branch regarding petitioner's possibility of parole and deny habeas corpus relief. See generally Zadvydas, 533 U.S. at 700 ("[o]rdinary principles of judicial review in [immigration] recognize primary Executive Branch responsibility. They counsel judges to give expert agencies decisionmaking leeway in matters that invoke their expertise.").

  As a caveat to the ruling, however, we must place some of the onus on the United States government. While petitioner must certainly cooperate with authorities in providing travel documents, the government should be able to focus its efforts on obtaining duplicate documentation in order to expedite the removal. If the government, after full cooperation from petitioner, remains unable to effectuate his repatriation within a reasonably expedient time period, we shall consider a renewed application for relief. In the event of such a situation, the Court will scrutinize the government's efforts much more closely, especially in light of the fact that petitioner's detention has already exceeded the six-month presumptive period of reasonableness. The government will, at that time, have to prove that his deportation is, in fact, nothing short of imminent. At this present juncture, however, we simply cannot, without speculation, find that his repatriation to the People's Republic of China is not significantly likely in the reasonably foreseeable future.*fn3 RECOMMENDATION

  AND NOW, this ___ day of April, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED AND DISMISSED WITHOUT PREJUDICE. There is no probable cause to issue a certificate of appealability.


  AND NOW, this ___ day of April, 2004, upon consideration of petitioner's Motion for Order to Show Cause and the Respondents' Opposition thereto, it is hereby ORDERED that the Motion is DENIED WITHOUT PREJUDICE to petitioner to fully brief and serve on Respondents his factual and legal grounds for his request that his deportation proceedings be reopened.*fn4

  It is so ORDERED.

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