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FENG v. ASHCROFT

United States District Court, E.D. Pennsylvania


June 22, 2004.

LIN FENG
v.
UNITED STATES ATTORNEY GENERAL JOHN ASHCROFT.

The opinion of the court was delivered by: CYNTHIA RUFE, District Judge

MEMORANDUM OPINION AND ORDER

This Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 comes to the Court on Petitioner Lin Feng's Objections to Magistrate Judge Charles B. Smith's April 15, 2004 Report and Recommendation ("R&R").

Petitioner, a native of the People's Republic of China ("China"), was convicted in state court of aggravated assault, simple assault, criminal conspiracy, reckless endangerment, and possessing an instrument of a crime. Petitioner was sentenced to nine (9) to twenty-three (23) months incarceration, to be followed by five (5) years of probation. After Petitioner was paroled, the Bureau of Immigration and Custom Enforcement ("BICE") detained him pending removal proceedings. On October 28, 2003, an Immigration Judge ordered Petitioner removed to China. Petitioner thereafter waived his appeal rights, making the deportation order final.

  On January 22, 2004, after review of Petitioner's custody status, the BICE denied Petitioner's request for release on bond for failure to show that he was not a flight risk and was not a threat to society. On March 15, 2004, Petitioner filed the instant Petition for a Writ of Habeas Corpus on the ground that his continued detention violates his constitutional rights under Zadvydas v. Davis, 533 U.S. 678 (2001).*fn1

  On April 15, 2004, Magistrate Judge Smith recommended that the Petition for Writ of Habeas Corpus be denied. In his R&R, Magistrate Judge Smith correctly noted that under Zadvydas a petitioner must demonstrate that there is "no significant likelihood of removal." Magistrate Judge Smith stated that this burden is usually met 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; (3) where there is no removal agreement between the country of origin and the United States; and (4) where there is no definitive answer from the target country after several months as to whether it will issue travel papers.*fn2 Magistrate Judge Smith found that none of these circumstances exists in this case. Further, he found that by not surrendering his Chinese passport Petitioner was partially responsible for the delay in the removal process. Magistrate Judge Smith therefore concluded that it was not clear that removal was not "reasonably foreseeable" and recommended that the Petition be denied without prejudice.

  Petitioner filed timely Objections to the R&R, disputing Magistrate Smith's factual finding that Petitioner willfully prevented his removal. Petitioner also argues that under Zadvydas the detention period in this case — which exceeds 6 months — is presumptively unreasonable. Finally, Petitioner contends that Magistrate Judge Smith erred in concluding that he was a flight risk. In its Response to Petitioner's Objections, the Government argues that the Zadvydas court merely ruled that extending the detention for the purpose of deportation of an alien for up to 6 months is "presumptively reasonable" — not that a period in excess of 6 months is per se unreasonable.*fn3 The Government asserts that Magistrate Judge Smith correctly concluded that Petitioner failed to meet his burden of proving that there is no significant likelihood of removal in the reasonably foreseeable future.

  Upon review of the record, this Court finds Magistrate Judge Smith properly analyzed the legal issues before him. As set forth in the R&R, the magistrate judge noted that Petitioner entered the United States with a passport but despite repeated requests has not surrendered it to BICE officials.*fn4 Magistrate Judge Smith further concluded that the government of China generally issues travel documents to citizens that have recently (in their adult years) entered the United States and are found to be removable.*fn5

  Petitioner has not met his burden under Zadvydas because he has failed to establish that his deportation to China is not reasonably foreseeable. Moreover, the Government has represented to the Court in its Response to the Objections that "[i]mmigration authorities are making active efforts to obtain travel documents" for Petitioner.*fn6 Accordingly, the Court approves and adopts the R&R and denies the Petition for Writ of Habeas Corpus without prejudice to Petitioner's right to re-file his Petition for Habeas Corpus Relief if he is not removed from the United States within ninety (90) days of the date of this Memorandum Opinion and Order.

  An appropriate Order follows. ORDER

  AND NOW, this 22nd day of June, 2004, it is hereby ORDERED and DECREED as follows:

(1) Petitioner Lin Feng's Objections to the Report and Recommendation [Doc. No. 15] are OVERRULED;
(2) Magistrate Judge Charles B. Smith's Report and Recommendation dated June 24, 2003 [Doc. No. 14] is APPROVED and ADOPTED;
(3) The Petition for a Writ of Habeas Corpus [Doc. No. 1] is DENIED WITHOUT PREJUDICE;
(4) There is no probable cause to issue a Certificate of Appealability; and
(5) The Clerk shall CLOSE this case for statistical purposes.


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