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LIANG v. BUREAU OF IMMIGRATION

May 20, 2004.

Min Cheng Liang, Petitioner
v.
Bureau of Immigration and Customs Enforcement, Respondent



The opinion of the court was delivered by: JAMES MELINSON, Chief Magistrate Judge

REPORT AND RECOMMENDATION

Before this court is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. The petitioner, Min Cheng Liang, is currently incarcerated at the Montgomery County correctional Facility in Norristown, Pennsylvania. For the reasons set forth below, this court recommends that Liang's petition be DENIED.

FACTUAL AND PROCEDURAL HISTORY

  According to his petition, Min Cheng Liang is a native of the People's Republic of China. He entered the United States as a legal permanent resident on March 3, 1987. In May 1999, Liang was arrested on charges involving the planning of an armed robbery and the shooting of three victims. One of the shooting victims died. Liang was subsequently convicted and sentenced to a term of 57 months' federal imprisonment.

  On January 2, 2001, while still serving his federal sentence, Liang asserts that he was served with an order of removal. Liang further asserts that he did not contest this order. On June 27, 2003, upon his release from criminal custody, Liang was taken into the custody of the Bureau of Immigration and Customs Enforcement ("ICE").

  In October 2003, ICE reviewed Liang's custody status. On October 21, 2003, ICE denied his request for release from ICE custody. ICE determined that Liang had failed to demonstrate that he would not present a risk to society if he were released from custody. In reaching this decision ICE considered the nature of Liang's crimes, and also concluded that he had failed to demonstrate that he had been rehabilitated while incarcerated and failed to provide sufficient evidence to show that he was not a flight risk. The decision to continue custody further reveals that at the time of this custody review, "[t]he consulate of China is currently processing [Liang's] travel document."

  Liang further asserts that on December 22, 2003, he submitted a request to the Headquarters Post-Detention Unit ("HQPDU") for an inquiry into the status of his removal. As of the date of his petition, Liang had not received a response. Pursuant to the decision of ICE regarding his custody, Liang remains in custody pending the issuance of travel documents.

  Liang filed this petition for habeas corpus relief on April 8, 2004. Liang raises three claims that his continued detention is in violation of: 1) the Immigration and Naturalization Act ("INA") § 241(a)(6); 2) substantive due process; and 3) procedural due process. ICE has filed a response asking that this petition be denied. Liang has also filed a response to which ICE has responded.

  DISCUSSION

  Under the INA, 8 U.S.C. § 1101, et seq., ICE has a ninety (90) day statutory "removal period" in order to effect Liang's removal from the United States. 8 U.S.C. § 1231(a)(1)(A). The removal period begins at the latest of three occurrences: the date the order of removal becomes administratively final; the date of any reviewing court's final order; or the date the alien is released from criminal confinement. See 8 U.S.C. § 1231(a)(1)(B)(i)-(iii). In Liang's case, the removal period began on June 27, 2003, when he was released from criminal custody into ICE custody. See 8 U.S.C. § 1231(a)(1)(B)(i). Detention is mandatory during the removal period. 8 U.S.C. § 1227(a)(2). If ICE is unable to remove the alien during those 90 days, however, the government "may" continue to detain the alien if the Attorney General has determined the alien to be a "risk to the community or unlikely to comply with the order of removal. . . ." 8 U.S.C. § 1231(a)(6); see also 8 C.F.R. § 241.4(a).

  Liang contends that he should be released from custody because he has been held for more than six months, and it is not likely that he will be removed to the Republic of China. In support of this claim, Liang relies on Zadvydas v. Davis, 121 S.Ct. 2492 (2001). In Zadvydas, the petitioner had been admitted to the United States for permanent residence, but had been ordered deported following criminal convictions. Because Zadvydas was actually "stateless" (he had been born in a `displaced persons' camp in Europe just after the Second World War), no country would agree to take him. The Court held that Zadvydas's continued detention was not permissible absent some showing that he could be removed.

  Liang contends that, although "he is ready to return to his native China . . . the Chinese consulate will not issue travel documents for [him] because [he] do[es] not have any family ties in China." Liang further asserts that he has "fully cooperated with all efforts . . . to remove him from the United States."

  The Supreme Court, in Zadvydas, interpreted 8 U.S.C. § 1231(a)(6) to limit an alien's post-removal-period detention "to a period reasonably necessary to bring about that alien's removal from the United States." Id., 121 S.Ct. at 2498. The Court further stated that extending the detention period for an alien in deportation proceedings up to six months is "presumptively reasonable." Id., at 2505. In the instant case, there is no dispute that more than six months have passed since the removal period expired. However, ICE contends that the fact that the six month period has passed does not mean that Liang is entitled to be released as Zadvydas does not limit ICE to a maximum of six months for carrying out a removal. This court agrees.

  In Zadvydas, the Court noted:
After 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 prior post-removal confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in ...

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