Opinion
CASE NO. 05CV1595.
November 29, 2005
ORDER
The matter before the court is the Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 filed by Petitioner Robert A. Ledda.
FACTS
Petitioner is a Filipino national. On June 19, 2002, an Immigration Judge ordered Petitioner removed to the Philippines as an alien convicted of an aggravated felony and an alien convicted of a controlled substance offense. On February 19, 2003, the Board of Immigration Appeals summarily affirmed the decision of the Immigration Judge. On February 27, 2003, the Immigration and Naturalization Service (INS) commenced processing to remove Petitioner.
Petitioner has pled guilty to public assistance fraud, possession for sale of a controlled substance, possession of marijuana for sale, felon in possession of a firearm, corporal injury to cohabitant, terrorist threats, and intimidating a witness.
On March 23, 2003, Petitioner filed an appeal in the Court of Appeals for the Ninth Circuit from the order of the Board of Immigration Appeals affirming his removal. The Court of Appeals issued a stay of removal pending appeal.
On June 30, 2003, while the appeal was pending in the Court of Appeals, Petitioner subsequently filed a motion to reopen in the immigration court on the grounds that he was a citizen of the United States. On July 3, 2003, the Immigration Judge denied the motion to reopen. Petitioner filed a motion to reopen with the Board of Immigration Appeals alleging that he was a citizen of the United States. On September 24, 2003, the Board of Immigration Appeals denied the motion to reopen.
On November 8, 2003, while the appeal was pending in the Court of Appeals, Petitioner wrote to the Department of Foreign Affairs for the Philippines stating his intention to renounce his Philippine citizenship to become an American citizen.
On June 23, 2004, the Court of Appeals dismissed the appeal affirming the removal order of the Board of Immigration Appeals and concluded that Petitioner had failed to show that he is a national of the United States.
On August 16, 2004, the Court of Appeals issued the mandate affirming the removal order which allowed the Government to implement Petitioner's removal to the Philippines.
Petitioner was transferred to San Diego and scheduled for a flight to the Philippines pursuant to the plan to remove him. As part of the removal process, the Philippine Vice-Consul interviewed each Filipino national scheduled for a flight to the Philippines. During the interview, Petitioner informed the Philippine Vice-Consul that he had voluntary renounced his Filipino citizenship. The Philippine Vice-Consul determined that he could not issue Petitioner a travel document because "you had voluntarily renounced your Filipino citizenship and consequently, you are no longer recognized as a Filipino citizen under Philippine law." Government Return Exhibit 13.
On September 9, 2004, the Philippines Vice-Consul informed Petitioner by letter that a travel document could not be issued to him because he had renounced his Filipino citizenship. The Philippines Vice-Consul wrote that "[t]he only instance that the Philippine Government will entertain a request from you for a travel document is if you request for one on the basis of your intention to apply as a stateless person for permanent residency in the Philippines. However, your request will have to comply with the requirements for permanent residency as set forth under Philippine law for it to be approved." Id. Petitioner subsequently informed an INS deportation officer in an interview that he was not going to apply for travel documents as a stateless person. Government Return Exhibit 14.
On January 12, 2005, Petitioner wrote to the Philippines Vice-Consul stating that
I am writing this letter as a stateless person who recently renounced my Philippine Citizenship. I am currently detained in San Diego under immigration custody. I was ordered to comply with all the procedures incurred under a post order custody review.
I am now requesting to be admitted as a resident to the country of the Philippines in order to successfully obtain a travel document and facilitate my removal from the United States of America from which I was ordered removed by an immigration judge. I find myself in a very difficult situation since I renounced citizenship to my country of birth without having pled allegiance to any other country. I am respectfully requesting to please consider the above request to be admitted as a resident, so that a travel document could be issued under a stateless person therefore a decision can be made by the United States government on either removing me to the Philippines under your consent or release me under a post order custody review.
Government Return Exhibit 16
On February 18, 2005, the Philippines Vice-Consul wrote to Petitioner informing him that his "request will have to be considered by the Philippine Government on a case by case basis, as it is an unprecedented case of a unique nature." Government Return Exhibit 17.
On April 4, 2005, the Philippines Vice Consul informed Petitioner that his "request could not be considered by the Philippine Government as your voluntary renunciation of citizenship disqualifies you from reacquiring your citizenship under Philippine laws. Reacquisition of Filipino citizenship . . . is only applicable to those who have lost citizenship through naturalization. Furthermore your felony convictions likewise disqualify you . . .". Government Return Exhibit 20. In September of 2005, U.S. Customs Enforcement officials met with Philippine officials. Philippine officials indicated that "in order for the Government of the Philippines to give full consideration for the issuance of a travel document for [Petitioner] he first needed to withdraw his renunciation of citizenship." Government Return Exhibit 26.
On August 11, 2005, Petitioner filed this Petition for Writ of Habeas Corpus on the grounds that his indefinite detention is unlawful and his indefinite detention violates substantive and procedural due process guarantees.
CONTENTIONS OF THE PARTIES
Petitioner contends that his detention is unlawful because his removal cannot be effectuated in the reasonably foreseeable future. Petitioner contends that he has cooperated in obtaining travel documents and that travel documents were not issued because he voluntarily renounced his Filipino citizenship. Petitioner contends that it has been twelve months since the final order of deportation and that the law does not allow indefinite detention.
Respondent contends that Petitioner's own conduct has delayed an otherwise routine process and that he is not entitled to release. Respondent contends that Petitioner's continued detention is permissible under 8 U.S.C. § 1231(a)(1)(C) when an alien refuses to cooperate in effecting his own removal. Respondent contends that Petitioner's conduct has so obviously delayed attempts to secure his repatriation that he should not be deemed to have established that his removal is not likely in the reasonably foreseeable future.
APPLICABLE LAW
Ordinarily, an alien subject to a final order of removal must be removed within 90 days after the removal becomes final. 8 U.S.C. § 1231(a)(1), 1231(a)(3). Aliens subject to removal for certain serious criminal offenses can be held beyond the normal 90 day removal. 8 U.S.C. § 1231(a)(6). A further exception to the 90 day requirement is provided in 8 U.S.C. § 1231(a)(1)(C) which states:
The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal subject to an order of removal.8 U.S.C. § 1231(a)(1)(C).
In Zadvydas v. Davis, 533 U.S. 678 (2001), the United States Supreme Court interpreted 8 U.S.C. § 1231(a)(6) to implicitly limit an alien's detention to a period reasonably necessary to bring about the alien's removal from the United States. The Court concluded that the statute, read in light of the Fifth Amendment's due process demands, does not permit indefinite detention. The Court held that a six-month period of post-removal detention constitutes a "presumptively reasonable period of detention." Id. at 701. The Court further explained that "[t]his six-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future." Id.
In Lema v. INS, 341 F.3d 853 (9th Cir. 2003), the Court of Appeals was asked to decide whether the "two-year continued detention of a removable alien is authorized by 8 USC § 1321(a)(1)(C) when the alien is refusing to cooperate fully with officials to secure travel documents from a foreign government." Id. at 854. Petitioner Lema was an Ethiopian national being detained by the INS. Petitioner Lema had applied to the Ethiopian Embassy for travel documents listing his nationality as "Eritrea[n]/Ethiopian." Id. at 855. Petitioner Lema spoke on the telephone to an Ethiopian consular official and "allegedly told the official that he is Eritrean, not Ethiopian." Id. Because Petitioner Lema said that he was Eritrean, Ethiopian officials decided not to grant him travel documents and he remained in INS custody.
The Court of Appeals held that Petitioner Lema cannot meet his burden to show there is no significant likelihood of removal in the reasonably foreseeable future and that his continued detention was authorized. The Court of Appeals explained that
. . . we held in Pelich v. INS, 329 F.3d 1057, 1057 (9th Cir. 2003), that, notwithstanding Zadvydas, the statutory exception of 8 U.S.C. § 1231(a)(1)(c) . . . authorizes the INS to continue detaining an alien whose refusal to apply in good faith for travel documents prevents the INS from removing him from the United States. We explained that the risk of indefinite detention that motivated the Supreme Court's statutory interpretation in Zadvydas does not exist when the alien "has the keys to freedom in his pocket and could likely effectuate his removal by providing the information requested by the INS." See Pelich, 329 F.3d at 1060 (internal quotation marks omitted). 341 F.3d at 856. The Court of Appeals stated: "[w]e hold today, consistent with Zadydas and Pelich, that when an alien refuses to cooperate fully and honestly with officials to secure travel documents from a foreign government, the alien cannot meet his or her burden to show there is no significant likelihood of removal in the reasonably foreseeable future." Id.
CONCLUSION
Petitioner's order of removal became final when the Court of Appeals dismissed his appeal on June 23, 2004. Petitioner could be held beyond the normal 90 day removal period pursuant to 8 U.S.C. § 1231(a)(6) because he was subject to removal for serious criminal offenses. Petitioner must establish that there is "no significant likelihood of removal in the reasonably foreseeable future" in order to be entitled to habeas relief. Zadvydas, 533 U.S. at 689.The record in this case establishes that removal to the Philippines is a routine process and that Petitioner was scheduled on a chartered flight out of the country soon after his order of removal became final. Petitioner's removal was aborted because he had renounced his Filipino citizenship after he was ordered removed from the United States by the immigration judge. The initial refusal of the Philippines Vice-Consul to issue travel documents to the Petitioner was a result of Petitioner's voluntary renunciation of his Filipino citizenship. The continued refusal to Philippine officials to issue travel documents to Petitioner is the result of his refusal to withdraw the renunciation of his Filipino citizenship. This is not a case where the Petitioner is caught in complicated diplomatic relations between the United States and his country of birth. In this case, Petitioner has failed to cooperate with Philippine officials to secure travel documents. The court finds that Petitioner, like the Petitioner in Lema, "cannot meet his burden to show there is no significant likelihood of removal in the reasonably foreseeable future." Lema, 341 F.3d at 857. Petitioner's continued detention is authorized by 8 U.S.C. § 1231(a)(1)(C).
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 filed by Petitioner Robert A. Ledda is denied. The Clerk is directed to enter judgment in favor of Respondent and against Petitioner.