United States District Court, M.D. Pennsylvania
M. MUNLEY United States District JUDGE
(“Lu”), presently a detainee of the United States
Immigration and Customs Enforcement (“ICE”),
incarcerated at the Pike County Prison, Lords Valley,
Pennsylvania, filed the instant petition for writ of habeas
corpus pursuant to 28 U.S.C. §2241 on October 6, 2016.
(Doc. 1). Respondents filed a response (Doc. 5) to the
petition on November 23, 2016. Lu filed his traverse (Doc. 6)
on December 7, 2016. Also pending are Lu's Motions (Docs.
9, 12) for a Preliminary Injunction and to Expedite Decision.
reasons set forth below, the Motion to Expedite Decision on
the petition will be granted, the Motion for a Preliminary
Injunction will be denied and the petition will be dismissed
Lu is a
native and citizen of China who entered the United States at
an unknown time and place and without inspection by an
immigration officer. (Doc. 5-1, p. 7). An Immigration Judge
(“IJ”) granted asylum on April 28, 2000; Lu
adjusted his status to a Lawful Permanent Resident on either
July 31, 2006, or July 31, 2007, under section 209(b) of the
Immigration and Nationality Act, (“INA”), as
amended. (Doc. 5-1, pp. 5, 7).
April 22, 2015, the United States Department of Homeland
Security initiated proceedings against Lu via a
Notice to Appear informing him that he was subject to removal
from the United States pursuant to Section 237(a)(2)(A)(iii)
of the INA based on his aggravated felony conviction, Theft
by Unlawful Taking, entered in the Court of Common Pleas of
Philadelphia County, Pennsylvania on November 20, 2014.
(Id. at pp. 3, 5).
took Lu into custody on December 16, 2015, following service
of his Court of Common Pleas of Philadelphia County sentence.
(Doc. 1, p. 2; Doc. 5-1, p. 7). On March 17, 2016, an IJ
ordered Lu removed from the United States to China.
(Id.; Id.). Lu waived his right to appeal.
(Doc. 5-1, p. 6). The removal order is therefore
15, 2016, and October 12, 2016, Lu received decisions to
continue his detention. (Id. at 7-9). In the October
decision, ICE advised Lu that it was working with the
government of China to secure a travel document and that a
travel document was expected. (Id. at 9). Michael
Loesch, the deportation officer with the Enforcement and
Removal Operations (“ERO”) division of ICE who is
managing the removal efforts, indicates that Lu's case is
a “priority 1” removal case due to his criminal
history. (Id. at 12, ¶ 3). Loesch began removal
efforts on March 29, 2016, and ICE submitted the travel
document request to the Chinese consulate on April 18, 2016;
status inquiries are made twice a month. (Id. at
¶¶ 4, 7). Loesch represents that, in his
experience, “the government of China does accept the
repatriation of its citizens. However, this process is time
consuming.” (Id. at ¶ 9). According to
Fiscal Year 2015 statistics maintained by ICE, 386 Chinese
citizens were removed to the People's Republic of China
in that year. (Doc. 5-1, p. 11).
challenges his “prolonged detention as
unconstitutional, unreasonable and well-beyond the limits to
the statutes under which he is now detained. . . .”
(Doc. 1, p. 1). He also takes issue with the due process
afforded him in the context of the custody review hearings.
(Id. at pp. 6-7).
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
(i) The date the order of removal becomes administratively
(ii) If the removal order is judicially reviewed and if the
court orders a stay of the removal of the alien, the date of