Opinion
Civil Action No. 03-6761.
April 27, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a counseled Petition for Writ of Habeas Corpus filed by the Petitioner, Zeng Jun Liu ("Petitioner"), pursuant to 28 U.S.C. § 2241. The Petitioner is currently being detained in the State Correctional Institution at York, Pennsylvania pending deportation. For the reasons that follow, it is recommended that the Petition should be granted and the Petitioner should be immediately released from detention to the supervision of the BICE pending deportation.
This information is taken from the Petition for Writ of Habeas Corpus, the Response and Reply thereto, and the exhibits attached to those pleadings.
Petitioner entered the United States on June 21, 2001, by "jumping ship" in port at Norfolk, Virginia, and was never properly admitted or paroled into the United States. Petitioner was arrested on July 5, 2002 in Shamokin Dam, Pennsylvania, and charged with identity theft and theft of property. See Resp., Ex. A, P. 2. On August 22, 2002, while Petitioner was in custody in the Snyder County, Pennsylvania prison for the state charges, his illegal immigration status was discovered by the Immigration and Naturalization Service ("INS"). Although Petitioner remained in custody in state prison, the Commonwealth withdrew the pending state charges against Petitioner on January 28, 2003, over five months following his arrest, with the understanding that the same charges might be reinstated if Petitioner was not removed from the United States. See Resp., Ex. A., p. 2. Thus, Petitioner was never convicted of any crime in the United States.Id. (stating Petitioner charged and held under state law, but not convicted and state law charges were dropped but may be reinstated). Petitioner was charged with removability under the Immigration and Nationality Act as an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General.
The Immigration and Naturalization Service ("INS") was incorporated into the Department of Homeland Security on March 1, 2003, and INS responsibilities are now divided among the Bureau of Immigration and Customs Enforcement ("BICE"), the Bureau of Citizenship and Immigration Services, and the Bureau of Customs and Border Protection. The BICE is responsible for carrying out deportation in the instant case. See Resp., p. 1 n. 1.
Immigration Judge Grace A. Sease ("IJ Sease") held a hearing on June 3, 2003, five months and twenty-five days after the state withdrew its criminal charges against Petitioner, and almost ten months following his arrest for identity theft and theft of property. Petitioner requested asylum, withholding of removal, and protection under the Convention Against Torture. Following the hearing, IJ Sease denied Petitioner's requests, and ordered Petitioner placed in detention pending his removal to Australia, or in the alternative, to China. See Resp., Ex. C. Petitioner waived his right to appeal IJ Sease's decision, and this waiver rendered Petitioner's removal order final. Id.
In correspondence dated October 17, 2003, the government of Australia informed Petitioner that it would not accept his application for migration. See Pet., Ex. 2. On October 27, 2003, following a custody review, the BICE District Director informed Petitioner that he would remain in custody because he:
ha[s] not demonstrated that [he] would not present a threat to society if [he] were released. In fact, a review of [his] file reveals that [he was] convicted of the following, IDENTITY THEFT and THEFT of PROPERTY. [He] ha[s] not provided sufficient evidence to show that [he] would not present a flight risk if [he] were released. It is not clearly evident that [he] would appear as required for removal.See Resp., Ex. D. Petitioner's counsel wrote to the Consul General of China on October 30, 2003, and has undertaken efforts to acquire appropriate travel documents from the Chinese government. See Pet., Ex. A at 4; Ex. E. On December 16, 2003, Petitioner's counsel filed the instant Petition with this Court, seeking Petitioner's release under Zadvydas v. Davis, 533 U.S. 678 (2001), and arguing that the six month removal period expired and Petitioner should be immediately released. Respondents contend that Petitioner is not entitled to release underZadvydas, and the Petition should be denied.
II. DISCUSSION.
Pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), aliens under a final order of deportation may be detained under the authority of 8 U.S.C. § 1231. Once removal becomes "administratively final," the Attorney General of the United States has ninety days to execute deportation and secure removal of the alien. See 8 U.S.C. § 1231(a)(1). Detention of the alien during that ninety day removal period is mandatory. See 8 U.S.C. § 1231(a)(2). The removal period begins on the latest of: (1) the date the order of removal becomes administratively final; (2) the date of the court's final order if the removal order is judicially reviewed and if a court orders a stay of the removal of the alien; or (3) the date the alien is released from detention or confinement if the alien is detained or confined (except under an immigration process). Id. The statute also provides that "[u]nder no circumstances during the removal period shall the Attorney General release an alien who has been found inadmissible." Id. At the conclusion of the ninety-day period, the alien may be released under the Attorney General's supervision pursuant to 8 U.S.C. § 1231(a)(3), or detained beyond the ninety-day removal period if he is "inadmissible under section 1182 of this title." See 8 U.S.C. § 1231(a)(6).
Petitioner contends that he should have had a custody review on or about September 1, 2003 pursuant to 8 C.F.R. § 241.4(h).See 8 C.F.R. § 241.4(h) (stating review to be conducted before expiration of removal period). Petitioner opines that he has been held beyond the allowable statutory detention period and relies on Zadvydas to support his theory that he should be released due to the length of his detention. In Zadvydas, two permanent legal residents were ordered removed following their criminal convictions. 533 U.S. 678. No country was willing to accept them upon the expiration of their ninety-day removal period, therefore their removal was impossible. Id. at 684-686. Nonetheless, the government continued their custody pursuant to section 1231(a)(6). Id. In that case, the United States Supreme Court emphasized the distinction between an alien who effects a legal entry into the United States and one who has never "entered."Id. The Court stated that "[o]nce an alien enters the country, the legal circumstance changes" and the Due Process Clause affords new protections for such individuals. Id. at 693. Because the Zadvydas petitioners were lawful permanent residents, the Court found that they were entitled to the benefit of the six-month presumption. Id. at 701-702.
The Government in the instant case argues that Zadvydas is inapplicable because Petitioner entered the United States without inspection in 2001 and is therefore an excludable or inadmissible alien under 8 U.S.C. § 1182(a)(6)(A)(i). The Government argues that even if Zadvydas did apply to Petitioner, he is not entitled to release at this time because he has not shown that there is "good reason to believe that there is no likelihood of his removal in the reasonably foreseeable future." Zadvydas, 533 U.S. at 701.
Whether Zadvydas applies in this case is dependent upon the issue whether Petitioner successfully effectuated an entry into the United States in 2001 and became a "deportable" alien. If he had not, he would be considered an excludable alien andZadvydas would not apply. It is uncontested that Petitioner physically entered the United States without inspection in 2001. Petitioner was also never paroled into this country, therefore he is not legally treated as a person stopped at the border not having effected an entry into the country. Thus, once he passed the point of entry and was physically present in the United States, albeit unlawfully, he successfully "effected an entry" into the country, rendering him a "deportable" alien entitled to the protections of the Due Process Clause. Lin v. Ashcroft, 247 F. Supp.2d 679, 684 (E.D. Pa. 2003) (citing Jiang v. Ashcroft, Civil No. 3:CV-01-1621, slip op. at 6 (M.D. Pa. May 28, 2002);Zhang v. INS, Civil No. 3:CV-00-1950, slip op. at 5 (M.D. Pa. May 23, 2002); Zheng v. INS, Civil No. 1:CV-01-2166, slip op. at 6 (M.D. Pa. March 12, 2002); Caballero v. United States, 145 F. Supp.2d 550, 554 (D.N.J. 2001) ("[D]eportable aliens [have been] successful in gaining entry to the U.S., legally or illegally; while an inadmissible alien seeks admission into the U.S., and even if physically present is considered detained at the border.")). Thus, Zadvydas applies to Petitioner, despite his illegal entry into the United States.
According to the Respondents, Petitioner's detention under the Supreme Court ruling in Zadvydas and the Third Circuit's ruling in Sierra v. Romaine, 347 F.3d 559 (3d Cir. 2003), does not violate due process. They claim that Petitioner is not entitled to release under Zadvydas at this time because he was placed in INS custody and four months later, had a custody review on October 23, 2003. Thereafter the determination was made to continue his detention on the basis that he constituted a flight risk. Moreover, the Respondents contend that Petitioner has not shown that there is "good reason to believe that there is no likelihood of removal in the reasonably foreseeable future."See Resp. at 5 (citing Zadvydas, 533 U.S. at 701). Respondents also note that Petitioner's counsel made a formal request to China for travel documents for Petitioner. Thus, Respondents contend that the Supreme Court's ruling in Zadvydas affords Petitioner no relief and does not support his claim that his continued detention is unconstitutional. However, Petitioner correctly contends that the Government's reliance on Sierra as support for the proposition that he does not have Zadvydas relief is misplaced because Sierra dealt with an alien who was paroled into the United States as a Mariel Cuban. Sierra, 347 F.3d at 576. Thus, Petitioner does not fall within the alien classification examined in Sierra.
As of this moment, this Court has not been informed whether the Government has received any updated information regarding Petitioner's travel documents from China. On January 28, 2004, the date that the Government's Response was filed, the Government claimed that "[i]t is not yet at all foreseeable that this request will not be granted." See Resp. at 5. Petitioner filed a second habeas petition in this District Court on February 4, 2004 seeking the same relief he seeks in the instant Petition, release from detention pending deportation. That case, Civil Action Number 04-0496, was assigned to the Honorable J. Curtis Joyner, who referred it to the Honorable Carol Sandra Moore Wells for preparation of a Report and Recommendation ("RR"). Judge Wells has not yet issued her RR in this matter.
A review of the case law in this area reveals that this case is less like Zadvydas than Chi Thon Ngo v. INS, 192 F.3d 390,reh'g denied, (3d Cir. 1999), a Third Circuit case decided before Zadvydas. Ngo was a Vietnamese native who was paroled into the United States as a refugee in 1982 and was later arrested, convicted and sentenced for attempted robbery and several other offenses. Id. at 392. He was ordered excluded and deported, but Vietnam refused to accept him and he remained in INS custody under section 1231(a)(6). Id. Ngo filed a habeas petition, contending that Vietnam's refusal to admit him subjected him to a virtually indefinite detention in this country which violated his due process rights. Id. at 392-393.
The Third Circuit stated that "[e]ven an excludable alien is a `person' for purposes of the Fifth Amendment and is thus entitled to substantive due process." Id. at 396 (citations omitted). The court, in summarizing case law, concluded that:
there is no constitutional impediment to the indefinite detention of an alien with a criminal record under a final order of exclusion, deportation, or removal if (1) there is a possibility of his eventual departure; (2) there are adequate and reasonable provisions for the grant of parole; and (3) detention is necessary to prevent a risk of flight or a threat to the community.Id. at 397. Moreover, "[a]ppropriate provisions for parole" include "an evaluation of the individual's current threat to the community and his risk of flight." Id. at 398. Here, although Petitioner does not have a criminal record which includes convictions, he does have an arrest record showing criminal charges.
On August 22, 2002, Petitioner was in state custody in the Snyder County prison, held and charged with identity theft and theft of property. See Resp., Ex. A at 2. The Government issued a Notice to Appear to Petitioner on August 24, 2002. On January 28, 2003, the Commonwealth withdrew those state charges with the understanding that they would be reinstated against Petitioner if he was not removed from the United States. Id. Petitioner did not have a hearing before IJ Sease until June 3, 2003, after which he was ordered removed to Australia or China and officially placed in detention pending deportation. See Resp., Ex. C. On October 13, 2003, Petitioner was notified by the government of Australia that it would not accept his application for migration.See Pet., Ex. 2. Petitioner's custody review took place on October 23, 2003, and the BICE District Director determined on October 29, 2003 that Petitioner's detention should be continued on the grounds that he poses a flight risk and could be recharged with crimes in Pennsylvania if he is not deported. On October 30, 2003, Petitioner's counsel made a formal request to the People's Republic of China for a travel document for Petitioner. Based on this formal request, Respondents claim that there is no foreseeable reason to find that the request will not be granted.
According to Petitioner's counsel, the Government's October 23, 2003 custody review was a cursory and crude review of Petitioner's file which violated his due process rights because the Government stated that his detention could be continued "on the grounds that he is a flight risk." See Reply at 4. The Government based this assumption on the fact that Petitioner has no strong ties to the United States. However, Petitioner submitted correspondence with his Petition evidencing his ties to the United States, including where he would live and potentially work if he were released from custody pending deportation. Petitioner contends that the Government's request to the Chinese Government for travel documents was made after his initial removal period had ceased, and the Government denied his custody review. According to Petitioner, this is the first evidence in the record that the Government attempted to remove him from the country. Petitioner notes that the Code of Federal Regulations states that the government should attempt removal during the original ninety day removal period. See 8 C.F.R. § 241.4. Thus, Petitioner argues that the Government's actions in his case have continuously violated its own regulations and his due process rights.
Petitioner claims that he was entitled to a custody review during his initial ninety day removal period, on or before September 3, 2003, and he did not receive a review until the Pennsylvania Immigration Resource Center, a small non-profit corporation that assists immigrants in detention, intervened to assist him. Petitioner claims that the Government's review was cursory and incomplete, because the review officer stated that he was convicted of crimes for which he had not been convicted. He further argues that his review officer did not review the submitted evidence showing that he is not a flight risk, but rather he simply checked the flight risk box on the provided form without commenting on the weight of Petitioner's relationship with the couple who has pledged to house him while he awaits deportation. Lastly, Petitioner argues that he has fully cooperated with the Government in expediting his removal from the United States because he contacted Australia on his own initiative and has done everything he can do to assist in his deportation, including providing fingerprints to expedite his removal. Despite Petitioner's efforts, he has not produced any evidence that his deportation is impossible. The facts of this case reveal that Petitioner has received at least one periodic parole review in which he was given consideration for parole.See 8 C.F.R. § 241.4(f).
The INS determined that: (1) Petitioner's continued detention was necessary because he had not demonstrated that he would not present a threat to society if he were released; (2) a review of his file revealed that he was convicted of identity theft and theft of property; (3) he had not provided sufficient evidence to show that he would not present a flight risk if he were released; and (4) it was not clearly evident that he would appear as required for removal. Resp., Ex. D. This Court notes, however, that Petitioner was never tried or convicted of the crimes with which he was charged. Therefore, the BICE District Director's decision was, in part, erroneous.
It appears that Petitioner falls within the purview of 8 C.F.R. § 241.13. That regulation was adopted by the INS on November 14, 2001, and it:
establishes special review procedures for those aliens who are subject to a final order of removal and are detained under the custody review procedures provided at § 241.4 after the expiration of the removal period, where the alien has provided good reason to believe there is no significant likelihood of removal to the country to which he or she was ordered removed . . . in the reasonably foreseeable future. 8 C.F.R. § 214.13(a). Section 241.13(b)(3) provides that the review procedures are inapplicable to `arriving aliens, including those who have not entered the United States, those who have been granted immigration parole into the United States, and Mariel Cubans,' aliens who are still within the statutory 90-day removal period, and aliens ordered removed by the Terrorist Removal Court.Lin v. Ashcroft, 247 F. Supp.2d 679, 684-685 (E.D. Pa. 2003). Petitioner does not fall within any of these categories. Judge DuBois also pointed out that "the Service's comments to § 241.13 state that it applies to `those [aliens] who are present in the United States without inspection, admission, or parole.'" Id. (quoting 66 F.R. 56969). This is Petitioner's immigration status, and therefore the Zadvydas due process protections are available to him.
The Honorable Jan E. DuBois of this District Court notes that section 241.4 governs:
the continued detention or release of aliens subject to a final order of removal, after the 90-day removal period has expired, and provides instructions to the INS as to the procedures for reviewing an alien's continued custody. The custody review procedures of § 241.4 "do not apply after the Service has made a determination, pursuant to the procedures provided in 8 C.F.R. § 241.13, that there is no significant likelihood that an alien under a final order of removal can be removed in the reasonably foreseeable future."Lin, 247 F. Supp.2d at 684 n. 5 (citing 8 C.F.R. § 241.4(b)(4)).
The Third Circuit has cautioned that "[w]hen detention is prolonged, special care must be exercised so that the confinement does not continue beyond the time when the original justifications for custody are no longer tenable." Ngo, 192 F.3d at 398. "The stakes are high and . . . grudging and perfunctory review is not enough to satisfy the due process right to liberty, even for aliens." Id. Further, "[m]easures must be taken to assess the risk of flight and danger to the community on a current basis. . . . [d]ue process is not satisfied . . . by rubberstamp denials based on temporally distant offenses." Id. As previously noted, Petitioner was arrested on July 5, 2002, and was in state custody through the time that he became known to the INS on August 22, 2002. He was not officially placed in INS custody until after his hearing before IJ Sease on June 3, 2003, almost a full year later, and his custody review took place over four months later, on October 23, 2003. His detention was then continued on October 29, 2003, on the grounds that he posed a flight risk. Almost six months have passed since that time, and there has been no updated information submitted to this Court with respect to the status of Petitioner's deportation proceedings other than the fact that Petitioner's attorney sent correspondence to the Chinese Consulate on October 30, 2003, seeking travel documents for Petitioner. As previously noted, the decision of the BICE District Director was erroneous, at least in part. According to regulations, the Government must continue to review Petitioner as follows:
When release is denied pending the alien's removal, the district director or Director of the Detention and Removal Field Office in his or her discretion may retain responsibility for custody determinations for up to three months after expiration of the removal period, during which time the district director or Director of the Detention and Removal Field Office may conduct such additional review of the case as he or she deems appropriate. The district director or Director of the Detention and Removal Field Office may release the alien if he or she is not removed within the three-month period following the expiration of the removal period, in accordance with paragraphs (e), (f), and (j) of this section, or the district director or Director of the Detention and Removal Field Office may refer the alien to the HQPDU for further custody review.8 C.F.R. § 241.4(k)(1)(ii). Because Petitioner was never actually convicted of any crime, his custody review took place beyond the ninety day removal period, and the BICE District Director's decision was partially erroneous, this Court shall recommend Petitioner's immediate release from detention to the supervision of the BICE pending deportation.
Although we are required to evaluate the instant Petition on its individual merits, the decisions made by this Court are not made in a vacuum and we are troubled by the seeming inconsistency with which the Government treats deportation cases. For example, in the case of Ji Da Zheng v. Dep't of Justice, Homeland Sec., Civil Action No. 04-334, the Government did not oppose the release of Mr. Zheng, an illegal Chinese alien, pending deportation despite the fact that he was convicted in federal court for violations of the Hobbs Act and for hostage taking. Mr. Zheng is married to a United States citizen with whom he has two children, and he has worked in the United States as a partner in family businesses including Chinese restaurants, catering, and import and export.
In the instant case, however, Petitioner has been held in state prison for almost two years without ever having been convicted of any crime, and despite providing evidence of employment and housing upon release pending deportation. In addition, Petitioner has made productive use of his time in prison, as evidenced by the letters prepared on his behalf by his GED and English as a Second Language teachers in the York County Prison. See Pet., Ex. 3, pp. 7-8.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of April, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241 should be GRANTED and Petitioner shall be released from detention to the supervision of the BICE pending deportation. There is no probable cause to issue a certificate of appealability.