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United States District Court, E.D. Pennsylvania

May 20, 2004.

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

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


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.


  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.


  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 confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.
Zadvydas, 121 S.Ct. at 2505.

  Federal courts that have considered this claim have consistently held that Zadvydas does not set out a per se rule that an alien's release is mandated after six months. See Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002) ("in order to state a claim under Zadvydas. the alien not only must show post-removal order detention in excess of six months but also must provide evidence of a good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future."); Nma v. Ridge, 286 F. Supp.2d 469, 474 (E.D.Pa. 2003) (under Zadvydas, an alien may be detained until he has met his burden of providing a good reason that there is no significant likelihood of removal in the reasonably foreseeable future); Khan v. INS, 194 F. Supp.2d 1134, 1137 (S.D. Cal. 2001) (where petitioner had presented no evidence of institutional barriers to removal of aliens to Pakistan, or individual barriers to his particular removal, fact of slow progress in removal process does not meet the burden under Zadvydas).

  Here, this court must conclude that Liang has failed to present sufficient evidence to establish that there is no significant likelihood of removal in the reasonably foreseeable future. Courts that have found "no significant likelihood of removal" where: 1) no country will accept the detainee; 2) the detainee's country of origin refuses to issue a travel document for the detainee; 3) there is no removal agreement between the detainee's country of origin and the U.S.; and 4) there was no definitive answer from the target country after several months as to whether it would issue travel papers for a detainee. Nma, 286 F. Supp.2d at 475 [citations omitted].

  These circumstances do not exist in the instant case. Here, China has stated an intention to repatriate petitioner, and the delay in issuing the documents has not been significant. Although, Liang claims that China will not take him back because of his status as a legal permanent alien and because he has no family ties in the Republic of China, he acknowledges that Chinese nationals have been repatriated. In contrast, the Decision to Continue Detention Upon Expiration of Removal Period clearly indicates that the consulate of China is currently processing Liang's travel documents. This court agrees with ICE that, although these efforts are still ongoing, at this time there is no reason to believe that the authorities will be unable to carry out Liang's removal within the reasonably foreseeable future. Cf. Seretse Khama v. Ashcroft, 215 F. Supp.2d 37, 46-48 (D.D.C. 2002) (holding that there was no significant likelihood of removal of detainee to Liberia in a case in which (1) the alien had been detained over 3 years; (2) the INS had no success in obtaining a travel document in that time; and (3) the Liberian embassy had specifically expressed its refusal to send detainee back to Liberia).

  This court further notes that Liang himself may have the keys to the prison door. If, as asserted by the Respondent, Liang entered the United States with a valid Chinese passport, his surrender of this document would further advance the removal process. Section 241(A)(1)(C) of the INA, 8 U.S.C. § 1231(a)(1)(C), provides that the removal period shall be extended and the alien may remain in detention "if the alien fails or refuses to make timely application in good faith for travel and other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal subject to an order of removal." In his response, Liang challenges ICE's assertion that he may not be fully cooperating, but he fails to reveal whether or not he possesses a Chinese passport.

  In upholding the continuation of an alien's two year detention under this section, the Ninth Circuit found that, "We cannot know whether an alien's removal is a `remote possibility,' Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491, until the alien makes a full and honest effort to secure travel documents." Lema v. U.S. Immigration and Naturalization Service, 341 F.3d 853, 856 (9th Cir. 2003). The court held that INA section 241, 8 U.S.C. § 1231(a)(1)(C), interpreted with the concerns underlying Zadvydas in mind, authorizes the continued detention of a removable alien "so long as the alien fails to cooperate fully and honestly with officials to obtain travel documents." Id. at 857. See also Pelich v. Immigration and Naturalization Service, 329 F.3d 1057, 1060 (9th Cir. 2003) ("the detainee cannot convincingly argue that there is no significant likelihood of removal in the reasonably foreseeable future if the detainee controls the clock").*fn1 If Liang does possess a Chinese passport, he should provide it to the proper authorities forthwith as evidence of his full cooperation with his removal. If he does not have a passport, he should so advise ICE.

  Finally, this court is satisfied that ICE has followed its procedures for reviewing Liang's custody status. The regulations provide that the district director may continue an alien in custody beyond the removal period if the decision-maker determines that the alien is unlikely to comply with the removal order or is a risk to the community. 8 C.F.R. § 241.4(a)(4). If such an alien demonstrates to the satisfaction of the Attorney General or his designee that his release would not pose a danger to the community or a significant flight risk, the district director may, in the exercise of discretion, order the alien released from custody on such conditions as the district director may prescribe, including bond in an amount sufficient to ensure the alien's appearance for removal. See 8 C.F.R. § 241.4(d)(1). The regulations set forth specific criteria for release, as well as factors to be weighed in considering whether to recommend further detention or release of a detainee. See 8 C.F.R. § 241.4(e), (f).

  As set forth in the September 3, 2003 Notice to Alien to File Custody Review, Liang was advised that, if he was not removed within the ninety day removal period, the Bureau's designated official would be reviewing his case for consideration of release on an Order of Supervison. Liang was further advised that his release was dependent on his demonstrating by clear and convincing evidence that he would not pose a danger to the community and would not be a significant flight risk. In addition, the notice set forth a list of factors the designated official would be considering in reaching this decision, which includes, but is not limited to the following: (1) the nature and seriousness of the alien's criminal convictions; (2) other criminal history; (3) sentence(s) imposed and time actually served; (4) history of failures to appear for court; (5) probation history; (6) disciplinary problems while incarcerated; (7) evidence of rehabilitative effort or recidivism; (8) equities in the United States; (9) prior immigration violations and history; and (10) cooperation in obtaining your travel document. Liang was also advised that he could submit any documentation he wanted the designated official to consider, and that an attorney or other person could submit materials on his behalf.

  As previously discussed, on October 21, 2003, ICE reviewed Liang's custody status. Based on a review of Liang's file, ICE determined that Liang should not be released from custody because he was a danger to society and posed a risk of flight. If Liang continues to be detained for an extended period of time while awaiting removal, he is entitled to additional custody reviews on a regular basis, and may present evidence of changed circumstances that would justify his supervised release, or evidence that would establish that ICE will not be able to carry out his removal in the reasonably foreseeable future. See 8 C.F.R. § 241.13. Thus, at this time the court finds that Liang's detention is consistent with the INA, its regulations, and with the Supreme Court's ruling in Zadvydas.

  Accordingly, this court makes the following:

  AND NOW, this day of May, 2004, IT IS RESPECTFUELY RECOMMENDED that the petition for a writ of habeas corpus be DENIED. It is further RECOMMENDED that there is no probable cause to issue a certificate of appealability.

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