Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lu v. Lowe

United States District Court, M.D. Pennsylvania

January 24, 2017

CAN LU, A# 070-903-730, Petitioner
v.
CRAIG A. LOWE, et al., Respondents

          MEMORANDUM

          JAMES M. MUNLEY United States District JUDGE

         Can Lu (“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.

         For the 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 without prejudice.

         I. Background

         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).

         On 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).

         ICE 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 administratively final.

         On June 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).

         Lu 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).

         II. Discussion

         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 following:

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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.