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Nguyen v. Gonzales

January 11, 2006

DIEM QUANG NGUYEN, PETITIONER
v.
ALBERTO GONZALES, RESPONDENT



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Diem Quang Nguyen ("Nguyen"), presently a detainee of the Bureau of Immigration and Customs Enforcement ("ICE"), incarcerated at the Clinton County Correctional Facility, McElhattan, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2241on December 30, 2005. (Doc. 1). For the reasons set forth below, a portion of Nguyen's petition will be referred to ICE as a request for review under 8 C.F.R. § 241.13. The remaining portions will be transferred to the Third Circuit Court of Appeals.

I. Statement of Facts

Nguyen, a native and citizen of Vietnam, is subject to a final order of removal from the United States dated February 14, 2005, and reissued on October 28, 2005. (Doc. 1, pp. 15, 16 ). ICE took custody of him on September 30, 2005. (Doc. 1, p. 5).

Nguyen indicates that, to date, ICE has been unable to remove him to Vietnam, or any other country. (Doc. 1, pp. 7, 9). He represents that he would not pose a threat to society and is not a flight risk. He is seeking release pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001).

Nguyen also seeks a stay of the removal order and an extension of time to file a petition for review challenging the underlying order of removal.

II. Discussion

A. Request for Release

Detention, release, and removal of aliens ordered removed is governed by the provisions of 8 U.S.C. §1231. Under §1231(a), the Attorney General has ninety days to remove an alien from the United States after his order of removal, during which time detention is mandatory. Section 1231(a)(1)(B) provides:

The removal period begins to run on the latest of the following:

(i) The date the order of removal becomes administratively final.

(ii) If the removal order is judicially reviewed and if the court orders a stay of the removal of the alien, the date of the court's final order.

(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement. At the conclusion of the 90 day period, the alien may be held in continued detention, or may be released under continued supervision. 8 U.S.C. §§ 1231(a)(3) & ( 6).

8 U.S.C. §1231. The statute "limits an alien's post-removal-period detention to a period reasonably necessary to bring about the alien's removal from the United States. It does not permit indefinite detention." Zadvydas v. Davis, 533 U.S. 678, 689 (2001). "Once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." Id. at 699. To establish uniformity in the federal courts, a period of six months was recognized as a "presumptively reasonable period of detention." Id. at 701. If at the conclusion of the six month period the alien provides good reason to believe that there is no significant likelihood of deportation in the reasonably foreseeable future, the burden shifts to the government to "respond with evidence sufficient to rebut that showing." Id. Not every ...


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