Opinion
CASE NO. C02-2060P
January 16, 2003
REPORT AND RECOMMENDATION RE: INDEFINITE DETENTION
INTRODUCTION
Petitioner is a native of Vietnam who is being detained by the Immigration and Naturalization Service ("INS") pursuant to an order of removal to that country that became final on July 20, 1990. On October 22, 2002, petitioner filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, which challenges, inter alia, the constitutional and statutory authority of the INS to detain him any further, due to the unlikelihood of his removal from this country in the reasonably foreseeable future. (Dkt. 4.) His petition is one of more than 400 that have been filed in this court over the last three years that raise the same common legal issues regarding indefinite detention by the INS.
On July 9, 1999, this court, in a Joint Order involving five "lead" cases, ruled that indefinite detention violated substantive due process. See Phan v. Reno, 56 F. Supp.2d 1149 (W.D. Wash. 1999). The Ninth Circuit Court of Appeals in Ma v. Reno, 208 F.3d 815 (9th Cr. 2000) (subsequent history omitted), affirmed the Joint Order, but on different grounds. The court determined that the INS lacked the statutory authority to detain deportable aliens beyond a ninety (90) day removal period if there was no reasonable likelihood of removal in the foreseeable future.
In Zadvydas v. Davis, 121 S.Ct. 2491 (2001), the United States Supreme Court affirmed Ma's general holding that indefinite detention is unauthorized. The Court stated that "in light of the Constitution's demands, . . . an alien's post-removal-period detention [is limited] to a period reasonably necessary to bring about the alien's removal from the United States." Zadvydas, 121 S.Ct. at 2498. The Court then adopted a "presumptively reasonable period of detention" of six months. Id. at 2504-05.
Petitioner's case falls into the Ma/Zadiydas group of indefinite detention cases. Having reviewed the entire record, including the habeas petition (Dkt. 4), respondents' return and status report and motion to dismiss (Dkt. 17), petitioner's response (Dkt. 18) and the INS administrative record (Dkt. 16), I recommend that petitioner's habeas petition be GRANTED, and that petitioner be released immediately.
BACKGROUND Petitioner is a 46-year-old native of Vietnam. (Dkt. 16 at L073.) It is unclear whether petitioner entered the United States at Honolulu, Hawaii on October 10, 1975, or at Philadelphia, Pennsylvania on October 16, 1975. ( Id. at R075 L075.) Nonetheless, petitioner entered the country as a refugee. His status was never adjusted to lawful permanent resident. (Dkt. 16 at L039.) He left Vietnam without a passport or any official exit visa issued by the government of Vietnam, and does not presently have a Vietnamese passport. (Dkt. 18 at 3.)
The is some discrepancy in the record as to petitioner's true birth date. Petitioner has used March 2, 1956, June 13, 1956, July 2, 1956, August 2, 1956, and May 21, 1961. (Dkt. 16 at R044.) However, the Court at least acknowledges 1956 as the correct year of birth, as that is what petitioner has provided, through counsel, in his brief (Dkt. 18 at 3.)
Petitioner has a lengthy criminal record, covering the states of Alabama, California, and Hawaii. In Alabama, on September 7, 1982, petitioner was convicted of Fraudulent Use of a Credit Card in the Circuit Court of the Tenth Judicial Circuit, Jefferson County. (Dkt. 16 at L009-14.) He was sentenced to one year and one day in prison. ( Id. at L067-68.) On August 23, 1984, petitioner was convicted in Honolulu District Court, Hawaii, of two separate offenses of Theft in the Third Degree. He was sentenced to 30 days in jail, of which 20 days were suspended, for the Theft conviction. Petitioner was also sentenced to one day in jail for Criminal Contempt of Court, to run concurrently with the Theft sentence. ( Id. at L038-39 L074.)
Just six months later, on February 4, 1985, petitioner was arrested in Los Angeles, California, and was charged with Hit and Run and Property Damage. He was subsequently convicted of Taking a Vehicle Without Owner Consent/Vehicle Theft. ( Id. at R043-44.)
Between 1985 and 1987, petitioner was convicted of a number of charges in and around Santa Ana, California. On September 6, 1985, petitioner was convicted in Santa Ana of Failure to Appear on a Felony Charge. He was sentenced to 90 days in jail, followed by three years of probation. ( Id. at R042-43.) On October 17, 1986, petitioner was convicted in Santa Ana of Possession/Manufacturing/Selling a Dangerous Weapon. ( Id. at R040-41.) On January 1, 1987, petitioner was convicted in Santa Ana of Theft/Petty Theft, and on April 24, 1987, petitioner was convicted in Westminster, California, of Burglary. ( Id. at R037-39.) The sentences, if any, are not provided in the record.
On April 27, 1988, petitioner was convicted in the Circuit Court of the First Circuit, Hawaii, of Theft in the Second Degree. ( Id. at R008.) Petitioner was sentenced on June 9, 1988, to nine months in jail, followed by five years of probation, and was fined $3,696. (Dkt. 16 at L022 L069.)
On June 17, 1988, petitioner was convicted in Honolulu District Court, Hawaii, of Theft in the Fourth Degree. Petitioner was sentenced to fourteen days in jail. ( Id. at R008.) On August 22, 1988, petitioner was again convicted in Honolulu District Court, Hawaii, of Theft in the Fourth Degree. Petitioner was sentenced to two days in jail. ( Id. at R010.)
Petitioner's record also reveals numerous additional convictions in Hawaii between 1989 and 1999, including Criminal Trespassing in the Second Degree, Theft in the Fourth Degree, Unauthorized Control of a Propelled Vehicle, Theft in the Second Degree, Theft in the Third Degree, and Criminal Contempt of Court. ( Id. at R010-11, R015-17, R020-21, R029-30, R068-69.) In addition, petitioner was arrested on several occasions for Criminal Contempt of Court and for parole violations.
The INS encountered petitioner while he was incarcerated at the Oahu Community Correctional Center in Honolulu, following his June 9, 1988, conviction for Theft in the Second Degree. ( Id. at L075.) On December 2, 1988, the INS issued an Order to Show Cause, Notice of Hearing, and Warrant of Arrest of Alien, placing petitioner in deportation proceedings. ( Id. at L070-75.) The INS alleged that petitioner was deportable pursuant to the Immigration and Nationality Act ("INA') of 1952 § 241(a)(4) — now codified as INA § 237(a)(2)(A)(ii) — in that he had been convicted of two crimes of moral turpitude not arising from the same scheme of criminal misconduct. ( Id. at L074.)
On July 20, 1990, deportation proceedings were conducted in Honolulu Immigration Court before Immigration Judge ("IJ") John C. Williams. Petitioner was ordered excluded and deported from the United States. ( Id. at L076.) The IJ also denied petitioner's application for asylum, but granted him Withholding of Deportation pursuant to INA § 243(h). ( Id.) Petitioner waived his right to appeal to the Board of Immigration Appeals ("BIA"). Thus, his order of removal became administratively final on that date.
Petitioner was then apparently allowed to remain at liberty; however, due to subsequent criminal convictions, the INS issued several Immigration Detainers, including one on December 11, 1995, with the Halawa Community Correctional Center in Aiea, Hawaii (Dkt. 16 at L049); one on May 12, 1999, with the Oahu Community Correctional Center in Honolulu, Hawaii ( Id. at L081); and one on May 16, 2001, with the Halawa Correctional Facility in Aiea, Hawaii. ( Id. at L052.) On June 27, 2002, the INS issued a Notice of Custody Determination, and petitioner was again taken into custody. ( Id. at L081.) Petitioner is currently detained at the Correctional Services Corporation ("CSC") facility in Seattle, Washington, and will be subject to state parole in Hawaii upon release. (Dkt. 18 at 1 and 7.) To his counsel's knowledge, petitioner's grant of withholding of removal has never been terminated.
On September 29, 2000, the INS made a request for travel documents to the Embassy of Vietnam. (Dkt. 16 at R075.) There is no record of any response. On August 6, 2002, after petitioner was taken back into INS custody, the INS forwarded a copy of its September 2000 travel documents request to its Headquarters Travel Document Unit in Washington, D.C. ( Id. at L080.) The record does not reflect any subsequent efforts to obtain travel documents.
Petitioner filed the instant habeas petition on October 22, 2002. (Dkt. 4.) On November 18, 2002, petitioner was interviewed by an INS Deportation Officer, to determine his custody status. (Dkt. 16 at R107 Dkt. 18 at 4.) As of this date, no decision has been made regarding petitioner's custody.
Respondents filed their return to the petition, along with a motion to dismiss, on December 17, 2002. (Dkt. 17.) Petitioner filed a response to the return on December 20, 2002. (Dkt. 18.) The habeas petition is now ripe for review.
DISCUSSION
In Zadvydas, the Supreme Court held that the applicable INS post-final removal order detention statute, 8 U.S.C. § 1231(a)(6), when "read in light of the Constitution's demands, limit[ed] an alien's post-removal-period detention to a period reasonably necessary to bring about the alien's removal from the United States." Zadvydas, 121 S.Ct. at 2498. The Court stated that a "habeas court mast [first] ask whether the detention in question exceeds a period reasonably necessary to secure removal." Id. at 2504. If a petitioner's removal is not reasonably foreseeable, "the court should hold continued detention unreasonable and no longer authorized by statute." Id.
In determining what is a reasonable removal period, the Court adopted "for the sake of uniform administration in the federal courts," id. at 2505, a "presumptively reasonable period of detention" of six months, id. at 2504. "After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing." Id.
As to what counts as "the reasonably foreseeable future," the Court stated that as the period of confinement grows, the period that is "the reasonably foreseeable future" must shrink. Id. As to the meaning of the phrase "significant likelihood of removal," the Court rejected the Fifth Circuit's requirement that a detainee show no likelihood of removal, and also rejected the Ninth Circuit's apparent reliance on the lack of a repatriation agreement to meet the standard. Id. Instead of either of these approaches, the Court suggested that a particularized inquiry is required in each case, and further counseled that a habeas court should "listen with care" when the executive branch's foreign policy expertise is involved. Id.
Respondents initially contend that petitioner's detention is lawful because the six-month period of presumptively lawful post-order detention has not expired. (Dkt. 17 at 5.) While this was true on the date respondents' brief was filed, it is no longer the case. Petitioner's post-final order detention period reached six months on or about December 28, 2002. Therefore, respondents' argument is no longer valid.
Respondents' second argument for petitioner's continued detention is that petitioner is unlikely to comply with the removal order, and that he is a risk to the community. (Dkt. 17 at 5.) Respondents claim that petitioner's past actions prove that he is unlikely to comply with any current conditions of release. This argument also fails. While petitioner is subject to parole in Hawaii upon release by the INS, he has already served all terms of imprisonment to which he was sentenced. Petitioner's criminal history does not factor into the Zadvydas analysis. In Zadvydas, the Court emphasized that INS proceedings are civil, not criminal, and thus nonpunitive in purpose and effect. Zadvydas, 121 S.Ct. at 2499. Therefore, preventive detention based on dangerousness can be upheld "only when limited to specially dangerous individuals and subject to strong procedural protections." Id. The Court explained that when preventive detention is of potentially indefinite duration, as petitioner alleges here, the dangerousness rationale must be accompanied by some other special circumstance. Id. Finally, the Court stated that "once the flight risk justification evaporates, the only special circumstance present is the alien's removable status itself, which bears no relation to a detainee's dangerousness." Id.
Petitioner has provided the Court with evidence that no repatriation agreement exists between the United States and Vietnam. ( See Dkt. 18 at 6 and Exhibit C.) Additionally, respondents have not indicated that any other efforts have been made by the government to obtain travel documents since their second request more than two years ago on September 29, 2000. Moreover, petitioner provides evidence that his grant of Withholding of Removal has never been terminated, so that the INS is actually prohibited from removing him; and argues that even if his relief was terminated, the United States cannot currently deport anyone to Vietnam. in particular, petitioner notes that Vietnam routinely refuses to respond to requests for travel documents from individuals ordered deported absent a formal repatriation agreement or arrangement. (Dkt. 18, Exhibits B D.)
Based on the foregoing analysis, I find that petitioner has shown there is no significant likelihood of his removal in the reasonably foreseeable future. The six-month period established by the Supreme Court in Zadvydas expired on or about December 28, 2002, and petitioner should be released immediately.
CONCLUSION
Accordingly, the court should GRANT petitioner's Petition for Writ of Habeas Corpus and should order petitioner's release on conditions, Such conditions may include those set forth in 8 C.F.R. § 241.5(a). A proposed order accompanies this Report and Recommendation.
In light of the nature of the case, and the court's direction to expedite it in every way possible, this court has shortened the usual time for objections and other responses to this Report and Recommendation. ( See cover letter attached to this Report and Recommendation).
ORDER GRANTING HABEAS PETITION
The court, having reviewed the Petition for Writ of Habeas Corpus, the Report and Recommendation of the Honorable John L. Weinberg, United States Magistrate Judge, and any objections or responses to that, and the remaining record, finds and Orders as follows:(1) The court adopts the Report and Recommendation;
(2) The court finds that petitioner's detention after the expiration of the six-month period is statutorily unauthorized under Zadvydas v. Davis, 121 S.Ct. 2491 (2001);
(3) The Petition for Writ of Habeas Corpus (Dkt. #4) is GRANTED;
(4) Petitioner shall be released from INS custody within two business days after entry of this Order, on conditions set by the INS which may include those set forth in 8 C.F.R. § 241.5(a); and
(5) The Clerk shall send a copy of this Order to all counsel of record, and to the Honorable John L. Weinberg.