Summary
denying petitioner's request for a writ of habeas corpus when, "petitioner's own actions — not the government's inability to deport him — have resulted in his continued detention during the past five years, during which time he has filed motions and/or appeals with the administrative courts, Second Circuit, and district court, with corresponding requests for stays of removal"
Summary of this case from Agoro v. Dist. Dir. for Immigration Custom EnforcementOpinion
Civil Action No. CV-02-5916 (DGT).
February 28, 2005
MEMORANDUM AND ORDER
On August 27, 2002, Lin Guang ("Guang" or "petitioner"), a detainee who faces a final order of removal, brought a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, in the Southern District of New York. The case was transferred to the Eastern District of New York in an Order signed by Chief Judge Mukasey on October 10, 2002. The petition sets forth various arguments challenging petitioner's final order of removal. For the reasons set forth below, the petition is denied and the stay of removal or deportation is lifted.
Background
On July 19, 1999, petitioner attempted to enter the United States illegally, presenting an altered Chinese passport that bore the name of a different individual. See Declaration of Margaret Kolbe, dated January 30, 2003 ("Kolbe Decl.") at Ex. A. Guang was refused admission to the United States, placed in the Wackenhut Detention Facility in Jamaica, New York, and referred to an asylum officer for a determination regarding his fear of persecution. See id. On July 28, 1999, the asylum officer determined that Guang had demonstrated the requisite fear of persecution, and on July 29, 1999, the INS District Director determined that, although the petitioner had been found to possess the requisite credible fear of persecution, he should be detained pending consideration of his asylum claim. Kolbe Decl. at Ex. B. On August 5, 1999, Guang entered into a program operated by the VERA Institute of Justice Appearance Assistance Program ("VERA Program"), which provides assistance to certain individuals seeking release from detention during the pendency of their asylum proceedings. Through his participation in the VERA Program, the petitioner was granted parole and released from detention. See Kolbe Decl. at Ex. D. Three months later, on November 18, 1999, upon recommendation of VERA Program, petitioner's parole was revoked because he had failed to comply with the condition that he report any change of address to the INS. See Kolbe Decl. at Ex. E. Accordingly, petitioner was again taken into INS custody and returned to the Wackenhut Detention Facility. Id.
Under the Homeland Security Act of 2002, Pub.L. 107-296 § 441, 116 Stat. 2135, 2193 (2002), 6 U.S.C. §§ 202(3) and 251, on March 1, 2003, the INS no longer exists as an independent agency within the Department of Justice and its functions have been transferred to the Department of Homeland Security. United States Immigration and Customs Enforcement ("ICE"), a bureau within the Department of Homeland Security, now bears responsibility for enforcing the immigration laws. See generally I.C.E. Press Office, U.S. Dep't of Homeland Security, Fact Sheet, Immigration and Customs Enforcement (ICE) (Oct. 6, 2004), available at http://www.ice.gov/graphics/news/factsheets/index.htm. As a matter of convenience, and in accordance with the parties' pleadings in this case, this opinion will continue to refer to the agency as the "INS."
On April 20, 2000, an immigration judge denied the petitioner's request for asylum, withholding of removal and relief under Convention Against Torture. See Kolbe Decl. at Ex. F. The petitioner did not appeal that decision. After the appeal deadline had passed, he brought a motion to reconsider, which was denied by the immigration judge on May 26, 2000. Guang's appeal of this decision was dismissed by the Board of Immigration Appeals ("BIA") on October 20, 2000. See Kolbe Decl. at Ex. G and Ex. H. Subsequently, petitioner made a motion to reopen removal proceedings before the BIA, which was denied on February 9, 2001. See Kolbe Decl. at Ex. I. He filed petitions for review of both BIA orders with the Second Circuit, which were consolidated and denied by summary order on March 7, 2003. See Guang Lin v. INS, Nos. 00-4215(L), 01-4033(CON), 2003 WL 1025059 (2d Cir. Mar. 7, 2003). Petitioner brought an additional motion to reopen, alleging ineffective assistance of counsel, which was denied by the BIA on July 2, 2002. See Kolbe Decl. at Ex. J. Petitioner appealed that decision as well, and the Second Circuit denied the petition, by summary order, on January 28, 2005. See Guang Lin v. INS, Nos. 02-4355, 03-4993, 2005 WL 195091 (2d Cir. Jan. 28, 2005). Petitioner's removal was stayed during the pendency of the above litigation. No additional motions are pending at this time.
Discussion
The instant habeas petition is construed as a request for release from INS custody. In that regard, the only question presented is whether Guang's continued detention violates the Supreme Court's holdings inZadvydas v. Davis, 533 U.S. 678 (2001), and Clark v. Suarez Martinez, 125 S. Ct. 716 (2005). In those cases, the Supreme Court held that under the Immigration and Nationality Act, the government may detain aliens only for as long as is "reasonably necessary" to effect their removal. Zadvydas established that detention of removable aliens is presumptively reasonable for six months after the issuance of a final order of removal, after which time detention is improper if the alien demonstrates, and the government fails to rebut, the lack of a significant likelihood of removal in the reasonably foreseeable future. 533 U.S. at 701. Clark resolves a question left open in Zadvydas by extending that ruling to aliens like petitioner, who were deemed inadmissible to the United States. Clark, 125 S. Ct. at 723.
Although the original petition, filed pro se, contested the merits of petitioner's underlying claims for asylum and withholding of removal, including his claims of ineffective assistance of counsel, those claims were on appeal to the Second Circuit during the pendency of this habeas petition. In light of that (now-resolved) litigation, the parties briefed only the issue of petitioner's detention.
Clark was decided after the briefing of this habeas appeal.
Petitioner's argument seems to be that any set of circumstances in which removal is not accomplished within six months constitutes per se proof that removal is not foreseeable and, consequently, a violation of the rule set forth in Zadvydas. See Petitioner's Reply at 1 ("if removal is not accomplished in six months, then removal of an alien held in post-removal-period detention is not reasonably foreseeable"). But this argument misreads Zadvydas. In Zadvydas, the petitioners were held indefinitely due to the inability of the U.S. government to return them to their home countries. 533 U.S. 684-86. The case at bar, however, is quite different: petitioner's own actions — not the government's inability to deport him — have resulted in his continued detention during the past five years, during which time he has filed motions and/or appeals with the administrative courts, Second Circuit, and district court, with corresponding requests for stays of removal. Under the circumstances, petitioner has failed to satisfy Zadvydas's requirement that he "provide good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future." 533 U.S. at 701. There has been no showing that the government is unable to remove petitioner within a reasonable period of time after the pending proceedings are completed. See Guner v. Reno, 2001 WL 940576, at * 2 (S.D.N.Y. Aug. 20, 2001) ("Here, petitioner has challenged the INS's decision to deport him and to deny him relief under § 212(c). It is these efforts that have prevented INS from removing him, and there has been no showing that the Government will be unable to remove petitioner within a reasonable period of time after the completion of these proceedings.");Sanusi v. INS, 2003 WL 21696945, at *3 (E.D.N.Y. July 15, 2003) ("Where an alien's removal is delayed through his own actions, an otherwise unreasonable delay does not violate procedural due process."). Nor is there any indication in the record that it would be difficult for the Government to return the petitioner to his native China.
The government contends that it will proceed with petitioner's removal from the United States now that the Second Circuit has denied Guang's remaining petition. See Docket No. 17 (Letter from Margaret Kolbe dated November 1, 2004, at 6).
Now that the Second Circuit has dismissed petitioner's last outstanding appeal, there appears to be no barrier to his removal. Hence, there is no basis under Zadvydas and its progeny for releasing petitioner from custody at this time.
As all of petitioner's outstanding claims have been denied, the six-month period established in Zadvydas would appear to apply to any detention period prior to his ultimate removal.
Conclusion
For the foregoing reasons, the petition for a writ of habeas corpus is denied. The previous stay of removal or deportation, issued by Chief Judge Mukasey on October 10, 2002, is hereby lifted. The Clerk of the Court is directed to close this case.