Chen v. Immigration Naturalization Service

Full title: HAO CHEN, Petitioner, v. IMMIGRATION NATURALIZATION SERVICE, Respondent

Court: United States District Court, E.D. Pennsylvania

Date published: Aug 26, 2004

Civil Action No. 04-57 (E.D. Pa. Aug. 26, 2004)

Opinion

Civil Action No. 04-57.

August 26, 2004

REPORT AND RECOMMENDATION

LINDA CARACAPPA, Magistrate Judge

Now pending before this court is a petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, challenging petitioner's continued detention. For the reasons which follow, it is recommended that the petition be denied and dismissed.

I. PROCEDURAL HISTORY

Petitioner is a native and citizen of the People's Republic of China who entered the United States illegally on September 21, 1992. He has never been lawfully admitted or paroled into this country.

On May 22, 1997, petitioner was convicted of first degree robbery in the New York Supreme Court. He was subsequently sentenced to serve seven to fourteen years in prison.

On May 11, 1999, petitioner was issued a Notice to Appear by the Department of Homeland Security Bureau of Immigration and Customs Enforcement (ICE). He was charged with removability under the Immigration and Nationality Act (INA) § 212(a)(6)(A)(i) as an alien present in the United States without being lawfully admitted or paroled, and under INA § 212(a)(2)(A)(i)(I) as an alien convicted of a crime involving moral turpitude.

On December 22, 1999, Immigration Judge Mitchell Levinsky ordered petitioner removed to the People's Republic of China. Petitioner failed to appeal, rendering final the order for his removal.

After serving six years in prison, petitioner had completed his sentence and was taken into custody by ICE on May 27, 2003.¹ On September 29, 2003, after review of petitioner's case, the District Director of ICE ordered that petitioner be detained pending removal, due to the fact that he was a flight risk and lacked significant family and community ties to the area. Efforts are currently being made on petitioner's behalf to secure the appropriate travel documents from China.

1 Petitioner contends he was taken into custody on May 28, 2003, but the difference in date is of no matter here.

Petitioner filed the instant petition for Writ of Habeas Corpus on January 7, 2004, alleging that he should be released because his continued detention violates Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491 (2001). Respondent retorts that petitioner is not entitled to federal relief, as recent Third Circuit precedent is directly contrary to petitioner's argument. Additionally, respondent contends that petitioner's detention has not been indefinite and his removal is reasonably foreseeable.

II. STANDARD OF REVIEW

Federal district courts have subject matter jurisdiction over habeas corpus petitions pursuant to 28 U.S.C. § 2241, despite the restrictions that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") impose on aliens' access to federal courts. The United States Supreme Court has held that neither statute repealed habeas jurisdiction under § 2241. See INS v. St. Cyr, 533 U.S. 289, 314 (2001). However, the scope of review is limited to questions of law. See Bakhtriger v. Elwood, 360 F.3d 414 (3^rd Cir. 2004).

III. MERITS

As mentioned above, petitioner contends that his detention violates Zadvydas. In that case, the Supreme Court held that once an alien has been ordered removed, he may legally be detained for "a period reasonably necessary to bring about [his] removal from the United States." 533 U.S. at 701. Though the Court held that six months of detention was to be considered presumptively reasonable, it noted that "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. Zadvydas does not apply to the case at bar, as petitioner is not a resident alien. The Zadvydas Court held that the Fifth Amendment has little or no application to cases in which aliens, such as petitioner, have never been lawfully admitted to the United States. Id. at 693.

The Third Circuit has recently followed that reasoning inSierra v. Romaine, 347 F.3d 559 (3^rd Cir. 2003). In that case, the court held that because the alien had never been lawfully admitted to the United States, his indefinite detention by the Attorney General did not amount to a constitutional violation. In other words, the six month presumption of reasonableness laid out in Zadvydas was not applicable.Sierra, 347 F.3d at 576. Likewise, in the case at bar, petitioner has never been lawfully admitted to the United States, and thus he cannot rely on Zadvydas or its reasonable detention period of six months.

Even if Zadvydas were to apply, petitioner still would not be entitled to relief, as it does not appear that there is good reason to believe that he will not be removed in the reasonably foreseeable future. Efforts are ongoing to obtain the necessary paperwork to effect petitioner's removal to China. Additionally, it was noted in petitioner's September 29, 2003 custody review that, "It is the experience of the INS/ICE that it is able to carry out the removal of citizens from China." As petitioner's detention has not been indefinite and his removal is reasonably foreseeable, the habeas petition must be dismissed.

Therefore, I make the following:

RECOMMENDATION

AND NOW, this __ day of August, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for Writ of Habeas Corpus be DENIED AND DISMISSED. It is also RECOMMENDED that a certificate of appealability not be granted.