Opinion
CIVIL NO.: 1:17-CV-00969
11-27-2018
ZHI FEI LIAO, Petitioner, v. CRAIG A. LOWE, Respondent.
(Chief Judge Conner) () REPORT AND RECOMMENDATION
I. Introduction.
This case comes before us on a petition for a writ of habeas corpus filed by Zhi Fei Liao ("Liao"). For the reasons set forth herein, we recommend denying Liao's petition.
II. Background and Procedural History.
Liao, a native and citizen of China, first entered the United States as a nonimmigrant visitor on July 20, 1998. Doc. 7 at 2. Along with his wife and child, Liao was granted asylum on March 23, 2000. Id. Liao and his wife subsequently had another child, who was born in the United States in 2002. Id. In 2011, Liao became involved with Ying Yu, with whom he subsequently had a child on June 18, 2013. Id.
On April 28, 2016, Liao was convicted of simple assault, terroristic threats, and endangering the welfare of a child based on a domestic violence incident in which Liao had punched Yu while Yu was holding their child, threatened to beat Yu to death, and caused the child to fall off of a bed. Id. at 3-4. Following his conviction, Liao was served with a notice to appear for removal proceedings. See doc. 7-4. Pursuant to those removal proceedings, United States Immigration and Customs Enforcement ("ICE") detained Liao in the summer of 2016. Shortly thereafter, ICE conducted a bond hearing at which it determined that Liao should continue to be detained. See doc. 7 at 5; doc. 7-6 ¶ 5; doc. 7-7.
The petitioner contends that he was first detained on July 22, 2016, while the respondent contends that the detention began on August 8, 2016. See doc. 1 at 3; doc. 7 at 5.
On October 28, 2016, an immigration judge ordered Liao's removal from the United States. Doc. 1 at 3; doc. 7 at 4-5. Liao appealed the immigration judge's decision to the Board of Immigration Appeals, which dismissed his appeal and denied his motion to remand the case. See doc. 7-1. Liao then appealed the board's decision to the United States Court of Appeals for the Third Circuit. Doc. 1 at 3; doc. 7 at 7. Liao's appeal to the Third Circuit is currently pending. See Liao v. Attorney General United States, No. 17-1825 (3d Cir. filed Apr. 12, 2017). On July 7, 2017, the Third Circuit stayed Liao's removal pending that court's decision on the underlying appeal. See id. doc. 003112668627 at 2.
On June 5, 2017, Liao began the instant case by filing a petition for a writ of habeas corpus. Doc. 1. In his petition, Liao cites Zadvydas v. Davis, 533 U.S. 678, 690 (2001), and Demore v. Kim, 538 U.S. 510, 513 (2003) for the proposition that "immigration detention violates due process unless such detention is reasonably related to its purpose." Doc. 1 at 5. Liao notes that under Zadvydas, "detention in excess of Six (6) Months is presumptively unreasonable." Id. Liao argues that based on Zadvydas, he should be granted habeas corpus relief:
In Zadvydas, [the Court] recognized that ICE might continue to detain aliens only for a period reasonably necessary to secure the alien's removal. The presumptively reasonable period during which ICE may detain an alien is only six months. Petitioner has already been detained in excess of six months and Petitioner's removal is not significantly likely to occur in the reasonably foreseeable future.Id. at 6. Liao then argues that his particular circumstances do not warrant continued detention. Id. at 7. Liao notes that he does not have a contagious disease, he does not pose a security or terrorism concern, and he does not pose a risk of absconding. Id. Liao further argues that he should "be found to be a non-violent person," meaning his release "would not pose a special danger to the public." Id. In addition to an argument based on Zadvydas, Liao relies on Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 474 (3d Cir. 2015) to argue that his detention has become constitutionally unreasonable. Doc. 1 at 8.
The respondent, Craig A. Lowe ("Lowe"), filed a response to Liao's petition on July 11, 2017. Doc. 7. Lowe acknowledges that under 8 U.S.C. § 1231(a)(1), an alien shall be removed within ninety days of the start of his removal period, but argues that under Zadvydas "[d]etention may continue beyond the ninety-day removal period if it is 'reasonably necessary' to effectuate removal or the alien may be released with applicable conditions of supervision." Id. at 7-8. Lowe notes that under Zadvydas, continued detention is presumptively reasonable for up to six months. Id. at 8. Lowe argues that because Liao's detention began on April 6, 2017, his continued detention is presumptively reasonable, and further that Liao's "continued detention is required to effectuate his removal." Id. at 8-9.
The respondent's brief was filed on July 11, 2017, approximately three months before the date on which Liao's detention would cease to be presumptively reasonable under Zadvydas. --------
In addition to rebutting Liao's Zadvydas argument, Lowe argues that Liao failed to exhaust his administrative remedies. Lowe cites 8 C.F.R. § 241.4(k)(2)(ii), which provides for custody reviews to be conducted by ICE's Headquarters Post-Order Detention Unit ("HQPDU") in cases of continued detention of aliens ordered removed. Id. at 9. Lowe argues that to properly exhaust his administrative remedies, Liao would have to first file a written request for review by the HQPDU before he could properly file a habeas corpus petition in federal court. Id.
Finally, Lowe argues that even if we were to conclude that Liao's detention were under § 1226, rather than § 1231, Liao's continued detention is still reasonable. Lowe relies on the standard laid out by the Third Circuit in Diop v. ICE/Homeland Sec., 656 F.3d 221, 269-70 (3d Cir. 2011). Doc. 7 at 11-12. Lowe further argues that Liao failed to exhaust his administrative remedies with regard to a second bond hearing under § 1226(a) since he was given a bond hearing approximately one month after first being detained and elected not to appeal the decision of the immigration judge denying him bond. Id. at 12-13. Lowe notes that if Liao's circumstances have materially changed since his first bond hearing, he may request a second bond hearing before an immigration judge. Id. at 14.
On August 1, 2017, Liao filed a reply. Doc. 8. Liao argues that his removal order is not yet final because his case before the Third Circuit is still pending and that court has issued a stay of removal. Id. at 2. Liao thus argues that his detention is governed by § 1226, rather than § 1231 and that the respondents' arguments based on § 1231 are in error. Id. After we granted the respondent leave to file a reply to Liao's August 1, 2017 brief (doc. 11), the respondent agreed that "Liao is currently detained under section 1226(a)." Doc. 12 at 3. Liao then filed another brief, in which he reiterated his argument that his detention is governed by § 1226 (see id. at 2), despite the fact that Lowe already agreed with that proposition in his most recent brief. See doc. 12. Subsequently, there were no additional briefs, making this case ripe for our review.
III. Discussion.
A. Liao's Detention Is Governed by 8 U.S.C. § 1226.
At the outset, we note that Liao has pressed two different and mutually exclusive arguments for habeas corpus relief. In his original habeas corpus petition, Liao argues that his detention is unconstitutional under Zadvydas because he has been in final removal proceedings for too long. See doc. 1. Liao's original argument is therefore based on 8 U.S.C. § 1231, which governs "[d]etention, release, and removal of aliens ordered removed." 8 U.S.C. § 1231. More recently, however, Liao argues that "his removal order to China is not yet final and detention is governed by the pre-removal period statue [sic], 8 U.S.C. § 1226(a)." Doc. 8 at 2; doc. 13 at 2.
Under § 1231, there are three events that trigger a detainee's final removal period:
(i) The date the order of removal becomes administratively final.§ 1231. Once a petitioner's removal has been stayed, however, his detention is no longer governed by § 1231, but rather by § 1226. See Leslie v. Attorney Gen. of U.S., 678 F.3d 265, 270 (3d Cir. 2012) (concluding that § 1226 governs detention in cases where a final removal order has been stayed and reasoning that "insofar as the purpose of § 1231 detention is to secure an alien pending the alien's certain removal, § 1231 cannot explain nor authorize detention during a stay of removal pending further judicial review"), abrogated in part and on other grounds by Jennings v. Rodriguez, 138 S. Ct. 830, 847 (2018), as recognized in Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 220 (3d Cir. 2018).
(ii) If the removal order is judicially reviewed and if a 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.
The Third Circuit stayed Liao's removal on July 7, 2017. Liao, No. 17-1825, doc. 003112668627 at 2. Liao's detention is therefore governed by § 1226(a), rather than § 1231.
B. Liao Is Not Entitled to a Bond Hearing Under § 1226(a).
Liao's argument for habeas corpus relief is predicated on the Third Circuit's holdings in Chavez-Alvarez and Diop. See Doc. 1 at 8. That argument, however, is precluded by the Third Circuit's more recent holding in Borbot v. Warden Hudson Cty. Corr. Facility, 906 F.3d 274, 278 (3d Cir. 2018).
In Diop, the Third Circuit addressed the constitutionality of continued detention under § 1226(c). "At a certain point," the court held, "continued detention becomes unreasonable and the Executive Branch's implementation of § 1226(c) becomes unconstitutional unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law's purposes of preventing flight and dangers to the community." Diop, 656 F.3d at 232-33. The court noted that in cases involving prolonged detention under § 1226(c), a court would have to conduct a "fact-dependent" analysis in order to determine whether the detention was constitutionally reasonable. Id. In Chavez-Alvarez, the Third Circuit reiterated that a "highly fact-specific" reasonableness analysis was the proper standard by which to analyze prolonged detention under § 1226(c). Chavez-Alvarez, 783 F.3d at 474.
In Borbot, the Third Circuit distinguished Diop and Chavez-Alvarez. "[T]he reasonableness inquiry we performed in Diop and Chavez-Alvarez is inappropriate in the context of § 1226(a)." Borbot, 906 F.3d at 278. The Borbot court outlined the basic structure of detention under § 1226(a), in which an alien may be detained pending a final decision on his removal, but must be given a bond hearing early in his detention. Id. at 275. Because of the structure of § 1226, the reasonableness inquiry applicable to § 1226(c) could not be grafted on to § 1226(a) cases: "unlike the § 1226(c) context, in which a habeas petition seeks to compel a bond hearing where there has been none, Borbot's habeas petition seeks to compel a second bond hearing despite alleging no constitutional defect in the one he received. This comes close to asking this Court to directly review the IJ's bond decision, a task Congress has expressly forbidden us from undertaking." Id. at 279.
Where a petitioner alleges no constitutional violations in his initial bond hearing under § 1226(a), but instead merely argues for habeas corpus relief on the basis of his prolonged detention, there is no constitutional requirement for a second bond hearing. See id. at 277 ("Borbot cites no authority, and we can find none, to suggest that duration alone can sustain a due process challenge by a detainee who has been afforded the process contemplated by § 1226(a) and its implementing regulations."). Absent constitutional defects in the first bond hearing, therefore, a second bond hearing may only be granted "upon a showing that the alien's circumstances have changed materially." See id. (citing 8 C.F.R. § 1003.19(e)).
Liao had a bond hearing on September 12, 2016, at which an immigration judge denied bond because of his determination that Liao was a danger to the community. Doc. 7-6 ¶ 5. Liao does not allege any constitutional defects with regard to his original bond hearing. Liao also has not requested a second bond hearing before an immigration judge, nor has he attempted to show a material change to his circumstances such that a second hearing would be warranted. Instead, Liao's argument is based solely on the duration of his confinement. See doc. 1. Since the § 1226(c) reasonableness inquiry is inapplicable in § 1226(a) cases, Borbot, 906 F.3d at 278, Liao is not entitled to a writ of habeas corpus.
IV. Recommendation.
For the foregoing reasons, we recommend that the court deny Liao's petition for a writ of habeas corpus.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 27th day of November, 2018.
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge