Opinion
CIVIL ACTION NO. 1:17-CV-01735
08-31-2018
LIANFU LIANG, Petitioner, v. CRAIG A. LOWE, et al., Respondents.
(CONNER, C.J.)
() REPORT AND RECOMMENDATION
Before the Court is a petition for writ of habeas corpus, brought under 28 U.S.C. § 2241 by petitioner Lianfu Liang. (Doc. 1). Liang asserts that he has been in the custody of Immigrations and Customs Enforcement since February 7, 2017; detained under 8 U.S.C. § 1226. Liang seeks immediate release and a bond hearing performed by this Court. (Doc. 1, at 8). For the following reasons, the Court recommends that Liang's petition be DISMISSED AS MOOT. I. BACKGROUND AND PROCEDURAL HISTORY
Petitioner Lianfu Liang entered the United States and became a lawful permanent resident on January 24, 1991. (Doc. 1, at 5). Liang, previously a citizen of the People's Republic of China, remained in the United States since entering, along with his wife and children.
In August 2006, Liang was arrested for larceny, with a conviction in November 2006 for the offense of Attempted Theft Under $100. (Doc. 1-1, at 4). In November 2009, Liang was arrested, and in March 2011 convicted, Possession of a Forged Instrument. (Doc. 1-1, at 4). In December 2014, Liang was arrested, and in November 2016 convicted, for Fraud in Connection with Identification Documents. (Doc. 1-1, at 4). As a result of these convictions, Liang was deemed deportable under § 237(a)(2)(A)(ii) of the Immigration and Nationality Act on February 1, 2017. (Doc. 1-1, at 5).
Following a hearing conducted September 5, 2017, Immigration Judge John P. Ellington ordered Liang removed to the People's Republic of China. (Doc. 1-1, at 7). Liang appealed, arguing that:
[t]he Immigration Judge found without sufficient basis that Respondent was not sufficiently remorseful for his criminal conduct in the federal case brought against him, in which he was convicted of one count of 'fraud in connection with identification documents' since Respondent could not recall with sufficient detail the facts behind the 2014/2015 Federal Conviction in the USDC, SDNY. This despite the fact that the FBI wrote a letter praising Respondent for his cooperation with the government, which cooperation resulted in the arrest, prosecution and conviction of others. The Immigration Judge also ignored the fact that Respondent paid all of the restitution ordered to victims, and despite the fact that the Federal Judge sentenced Respondent to one(1) month in jail, and a term of supervised release of 3 years.
[] The Immigration Judge ignored the fact that Respondent is now in his 50's and has a daughter for whom he is responsible and whom he loves, who has been diagnosed with an aggressive form of brain cancer, and a wife who needs him present with her in the United States.
. . .
[] The Immigration Judge misapplied the standards for review in deciding whether to grant or deny an LPR Cancellation Application under INA Section 240A(a).
[] The Immigration Judge ignored the hardship that would be suffered by Respondent's family if he is deported back to the People's Republic of China.
(Doc. 1-1, at 11-12).
On September 27, 2017, with his appeal pending, Liang filed the instant petition for writ of habeas corpus. (Doc. 1). In his petition, Liang stated that his detention, mandatory under 8 U.S.C. § 1226(c), reached constitutionally-impermissible lengths. (Doc. 1, at 6). He argued that the governing statutory provision prevented him a bond hearing during his seven months of incarceration. (Doc. 1, at 6). Liang seeks release and a bond hearing performed by this Court. (Doc. 1, at 8-9).
The Government responds that the "highly fact-specific" circumstances for determining when a detained alien is entitled to a bond hearing weigh in favor of continued detention without a bond hearing in this case. As posited by the Respondent, the question raised is whether the burden to Liang's "liberties outweigh[] any justification for using presumptions to detain him without bond to further the goals of the statute." (Doc. 3, at 5); Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 478 (3d Cir. 2015).
On February 19, 2018, Liang filed a motion to expedite, as his incarceration had reached 12 months. (Doc. 4). On February 20, 2018, the Board of Immigration Appeals dismissed Liang's appeal of the September 5, 2017 Order. (Doc. 5, at 2, 8-9). On March 23, 2018, the Third Circuit Court of Appeals issued a temporary stay of removal; lifted July 23, 2018. Liang v. Att'y Gen., No. 18-1426 (3d Cir.).
On August 1, 2018, the Respondents filed a motion to dismiss Liang's petition as moot. (Doc. 22). Therein, they argue that the Third Circuit's lifting the temporary stay of removal and dismissal of Liang's appeal for lack of jurisdiction shifts Liang's detention from § 1226 to § 1231. (Doc. 22). On August 15, 2018, the Court heard oral argument from the parties on the suggestion of mootness.
At oral argument, Petitioner's counsel argued that Liang's order of removal is not "final" for the purposes of the Immigration and Nationality Act and thus detention remains under § 1226. Counsel further argued that whether the pre- or post-removal statute applies, the "extraordinary circumstances" surrounding Liang's detainment warrant a bond hearing; permissible given the "flexible" nature of habeas relief. The Government responds that Liang's detention shifted to § 1231, rendering Liang's petition brought under § 1226 as moot, and that the Court may not look to the merits of the underlying proceedings under 8 U.S.C. § 1252.
The matter is now ripe for review. II. DISCUSSION
Congress has enacted multiple provisions authorizing the detention of aliens seeking entry into the United States or who already reside within its territorial limits. Only two are relevant to Liang's period of incarceration: 8 U.S.C. §§ 1226 & § 1231.
An alien detained pursuant to a final order of removal is subject to the provisions outlined in § 1231. Under § 1231, "the Attorney General shall remove [an] alien [subject to an order of removal] from the United States within a period of 90 days." 8 U.S.C. § 1231(a)(1)(A). The removal period begins on the latest of:
(i) The date the order of removal becomes administratively final.
(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.
"During the removal period, the Attorney General shall detain the alien. Under no circumstance during the removal period shall the Attorney General release an alien who has been found . . . deportable under section 1227(a)(2)." 8 U.S.C. § 1231(a)(2). Upon expiration of the 90-day removal period, an alien shall be subject to continued supervision on conditions, but detention is no longer mandatory. 8 U.S.C. § 1231(a)(3).8 U.S.C. § 1231(a)(1)(B).
Immigration Judge John P. Ellington ordered Liang removed on September 5, 2017. (Doc. 1-1, at 7). Liang is deemed removable for two convictions on crimes involving moral turpitude as enumerated under § 1227(a)(2). (Doc. 1-1, at 3). The Board of Immigration Appeals dismissed Liang's appeal on February 20, 2018. (Doc. 5-2, at 3). Liang appealed to the Third Circuit, who issued a stay of Liang's removal on March 23, 2018. Liang v. Att'y Gen., No. 18-1426 (3d Cir.). This District is split on whether the BIA's decision renders an order of removal "administratively final" or if the issuance of a stay of removal prevents the order of removal from reaching administrative finality. See Patel v. Doll, No. 1:17-CV-01594, 2018 WL 2307017, at *3(M.D.Pa. Apr. 11, 2018). Compare Chica-Iglesia v. Lowe, No. 1:18-CV-0035, 2018 WL 1960438 (M.D. Pa. Apr. 25, 2018).
Regardless which stage of finality the removal order existed in at the time of the Third Circuit's stay of removal, the stay entered ensured that Liang remained in the detention provisions of § 1226. "[E]very circuit to consider the issue has held that § 1226, not § 1231, governs detention during a stay of removal. . . . Furthermore, 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." Leslie v. Att'y Gen. of U.S., 678 F.3d 265, 270 (3d Cir. 2012) (internal citations omitted).
Upon termination of the stay, Liang's detention transitions from the pre-removal provisions of § 1226 to the post-removal standards of § 1231 and the 90-day removal period begins. See Omollo v. Warden, York Cnty. Prison, No. 3:17-1039, 2018 WL 2292533, at *2 (M.D. Pa. May 18, 2018) ("The dismissal of Omollo's pending petition for review [by the Third Circuit Court of Appeals] converted [Omollo's] mandatory detention under Section 1226 to post-final order detention under Section 1231."); Gekara v. Lowe, No. 3:17-1693, 2018 WL 837599, at *2 (M.D. Pa, Feb. 12, 2018) ("However, the ninety-day removal did not commence until October 2, 2017, when the Third Circuit lifted its temporary stay of removal upon deciding that Petitioner did not satisfy the requirements for a stay of removal pending a decision on his petition for review."); Payano v. Lowe, No. 3:CV-16-2029, 2016 6995433, at *2 (M.D. Pa. Nov. 30, 2016) ("However, the ninety-day removal period did not commence until November 8, 2016, when the Third Circuit lifted its temporary stay of removal upon deciding that Petitioner did not satisfy the requirements for a stay of removal pending a decision on his petition for review.").
This transition from § 1226 to § 1231 renders Liang's petition, brought as a challenge to § 1226 confinement, moot. Ibid; see Ufele v. Holder, 473 F. App'x 144, 146 (3d Cir. 2012); Rodney v. Mukasey, 340 F. App'x 761, 764 (3d Cir. 2009); Ramirez-Alvarez v. Decker, No. 1:CV-13-CV-1753, 2014 WL 794582, at *2 (M.D. Pa. Feb. 27,2014); Pierre v. Dep't of Homeland Sec., No. 1:12-CV-1869, 2013 WL 4083777, at *6 n.5 (M.D. Pa. Aug. 13, 2013). Liang's detention transitioned to § 1231 during the course of his confinement, with the removal period commencing on the date the Third Circuit entered its final order and lifted the stay of removal. See 8 U.S.C. § 1231(a)(1)(B)(ii); Bautista v. Sabol, 862 F. Supp. 2d 375, 378 (M.D. Pa. 2012) ("Where, as here, the administrative removal order is judicially reviewed, the removal period begins to run with the 'date of the court's final order.'"). Until the expiration of the 90-day removal period - on October 21, 2018 - Liang's detention is mandatory under § 1231(a)(2).
Recognizing the discrepancy within this District, the order of removal became final either upon the BIA's dismissal on March 23, 2018, or the Third Circuit's decision on July 23, 2018. Under either, the removal period did not commence until the Third Circuit's decision and remains in effect. --------
Over Liang's assertion that the flexible nature of habeas relief and extraordinary circumstances surrounding Liang's lengthy incarceration, the Court recommends that ordering a bond hearing at this stage of detention would be contrary to the mandatory detention provisions of § 1231 governing the removal period. The Court possesses jurisdiction only over "constitutional claims and questions of law" - Guzman v. Att'y Gen. U.S., 770 F.3d 1077, 1082 (3d Cir. 2014) - but is specifically stripped of the jurisdiction to review final orders of removal on any other grounds or for discretionary determinations of the Attorney General. 8 U.S.C. § 1252(a)(2)(B)-(C). Liang's detention under § 1231 does not yet invoke the constitutional concerns necessary to warrant relief, nor does Liang challenge the legal conclusions made by the immigration judge and BIA. See Amaya Escobar v. Doll, No. 4:18-CV-00104, 2018 WL 1141438, at *2 (M.D. Pa. Mar. 2, 2018) ("With respect to habeas corpus petitions filed by United States Immigration and Customs Enforcement . . . detainees, federal district courts have jurisdiction only when the detainee is seeking immediate release on bond on the grounds that his continued detention is unconstitutional.") (emphasis in original). The removal period of § 1231 only commenced 36 days ago, and the significant constitutional concerns that come with prolonged detention have not yet arisen. Should Liang continue his detention beyond the removal period and any subsequent period required to effectuate his removal however, a subsequent petition and/or bond hearing would be warranted. III. RECOMMENDATION
In accordance with the foregoing, the Court recommends that the Petitioner's petition for a writ of habeas corpus (Doc. 1) be DISMISSED AS MOOT. Petitioner's change in detention status from § 1226 to § 1231 renders his petition moot. Further, the Court recommends that a bond hearing not be ordered at this time, as Petitioner's detention is still within the statutorily mandated removal period of § 1231. As the Court recommends dismissal of the underlying petition, the currently pending motion to expedite (Doc. 4) should likewise be DISMISSED. Dated: August 31, 2018
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 31, 2018.
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
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.Dated: August 31, 2018
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge