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
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
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
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 ...