Opinion
No. C01-1947P
May 2, 2002
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is an Indian citizen who has been detained for over two years pending a final order of deportation. On December 3, 2002, he filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 challenging his detention. (Dkt. No. 1). The matter was referred to the Honorable Monica J. Benton, United States Magistrate Judge, who issued a Report and Recommendation to dismiss the petition. (Dkt. No. 9). The Court has reviewed the habeas petition, Respondents' motion to dismiss, the Report and Recommendation, Petitioner's objections, and the government's response to the objections. On review, the Court concludes that Petitioner's detention is lawful. Petitioner has also failed to identify any form of relief from deportation for which he may apply. Therefore, the Court finds and
Orders:
(1) Respondent's motion to dismiss, (Dkt. No. 6), is GRANTED.
(2) Petitioner's § 2241 petition, (Dkt. No. 1), is DENIED and this action is DISMISSED.
The Court writes this Order rather than adopt the Report and Recommendation in full in order to address the issues raised in Petitioner's objections and avoid an arguably unsettled issue of constitutional law and statutory interpretation.
BACKGROUND
Petitioner attempted to enter the United States in 1993 at JFK airport in New York. Mr. Singh sought asylum, and while his application for asylum was pending, he was paroled into the United States. He twice applied for asylum and withholding of deportation, and both applications were denied and resulted in final orders of exclusion and deportation. In 1998, Petitioner married a U.S. citizen who applied on his behalf for an immediate relative visa. The INS denied that application the same year as abandoned. Judge Benton's Report and Recommendation contains a more complete factual and procedural background, which is adopted and incorporated into this Order.
ANALYSIS
Judge Benton's Report and Recommendation concludes that the Petitioner does not fall into the class of detained aliens considered by Zadvydas v. Davis, 121 S.Ct. 2491 (2001) so that his detention for more than two years is lawful. Petitioner makes three arguments in his brief objections: (1) the "constitutional protections on detention" outlined in Zadvydas to apply to Petitioner; (2) the Court should hold an evidentiary hearing on to determine the nature of Petitioner's entry into the country; (3) the Report and Recommendation fails to give appropriate weight to the existence of a valid marital union between Mr. Singh and his wife.
I. Zadvydas
In Zadvydas, the Supreme Court directed the district courts, in accordance with their authority under the federal habeas corpus statute, to ask whether the detention of a lawfully admitted alien exceeds a period reasonably necessary to secure removal. 121 S.Ct. at 2504. Under the statute authorizing detention pending removal, 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. After a presumptively reasonable period of six month of detention, once a petitioner 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.
The application of Zadvydas to parolees such as Petitioner has not yet been settled. The petitioners in Zadvydas were permanent resident lawfully admitted to the U.S. Id. at 2495-96. Petitioner, however, never effected a lawful entry into the country. Zadvydas itself recognized the distinction between aliens who are admitted and those who have never effected an entry. Id. at 2500. However, Zadvydas did not squarely address whether the presumptively reasonable period of six months of detention would apply to those not admitted, such as Petitioner. The issue of whether Zadvydas applies to inadmissible aliens is currently being litigated in the Ninth Circuit, which has not yet published a decision on the matter. Prior to Zadvydas, the Ninth Circuit held that persons paroled into the U.S., whose cases were adjudicated in what were formerly exclusion proceedings. may be lawfully detained for significantly longer periods of time under the Constitution and by the detention statute then in effect. Barrera-Echavarna v. Rison, 44 F.3d 1441, 1448, 1449 (9th Cir. 1995) cert. denied, 516 U.S. 976 (1995). Nonetheless, at least one judge has held that Zadvydas applies to parolees and aliens who have not otherwise effected an entry. Borrero v. Aljets, 178 F. Supp.2d 1034 (D.Minn. 2001).
The Court may decide Petitioner's claim without addressing the unsettled question of the reach of Zadvydas. Even were the Court to apply the Zadvydas standard to Petitioner, there is a significant likelihood of his removal in the reasonably foreseeable future. The District Director has reviewed Mr. Singh's detention periodically, concluding that Mr. Singh's removal from the country was likely to occur in the foreseeable future on receipt of travel documents from India. Absent positive efforts from the detainee or the family, it is common for the Govermnent of India to take a year or more to produce travel documents. (Payombari Decl. ¶ 9). Mr. Singh has indicated that he has a passport, but states that it is in the custody of his attorney. ( Id. ¶ 6). His attorney suggested that Mr. Singli's family has the passport, but has not made efforts to produce that document for the INS. (Id.). Certainly, Mr. Singh may choose not to assist the INS in his deportation. However, in doing so he is also partly responsible for his lengthy detention. Based on information from the Indian consulate, the INS earlier anticipated only delay, not difficulty, in obtaining travel document for Mr. Singh. ( Id. ¶ 5). On April 25, 2002, the INS sent notice to the court that deportation was "imminent," and that the Indian consulate in San Francisco is now ready to issue a trave document for Mr. Singh. (Notice of Imminent Deportation Ex. A at 1). Petitioner has not responded to this notice. Even analyzing Petitioner's case under Zadvydas, the Court concludes that detention is authorized under statute since Mr. Singh's deportation is significantly likely in the foreseeable future.
II. Evidentiary Hearing on Excludability
Petitioner asks for an evidentiary hearing to determine the nature of his entry and if h is an "excludable alien." Because, as the Court concludes above, Petitioner's detention and deportation is authorized regardless of whether or not he effected an entry, there is no need to revisit this administrative determination. Additionally, Petitioner provides no evidence or argument of error in his prior identification and adjudication as a parolee in exclusion proceedings in numerous administrative hearings. The Court will not hold an evidentiary hearing to investigate the nature of Petitioner's entry.
III. Immediate Relative Petition
Petitioner protests that the Judge Benton's Report and Recommendation fails to give appropriate consideration to the claim that Mr. Singh is married to a U.S. citizen. Petitioner is correct that the Report and Recommendation does not devote significant attention to this fact. The Report and Recommendation does not address the issue because Petitioner failed to respond to the INS' motion to dismiss, which set forth why Petitioner has no relief. Petitioner has failed to identify any form of relief for which he is eligible, even though he is married to a U.S. citizen.
The Court is concerned that Petitioner, either by choice or attorney error, lost apparently his only potential form of relief through abandonment of the immediate relative petition of his wife. In 1998, Petitioner's wife applied on his behalf for an immediate relative visa. This application lacked certain information, and the INS sent a request for additional evidence. Petitioner contends that he sent supplemental materials to the INS. He attaches a letter to his petition that his attorney, who also represents him in this matter, ostensibly sent to the INS providing the requested information. His attorney, however, provides no proof of having mailed the letter. The INS claims to have no record of receiving the letter, or any other contact from the petitioner thereafter. Consequently, the INS deemed the petition abandoned, and the agency denied the visa on September 9, 1998. There is no record of Petitioner having objected to the denial of the application or having sought to reopen the application. In fact, his attorney believed that the application was still pending when Mr. Singh filed this petition.
By failing to pursue the immediate relative petition, Mr. Singh is now apparently without relief. His attorney puts forward a single hypothetical argument that, should Congress extend Section 245(i) of the Immigration and Nationality Act ("INA"). Petitioner may have an opportunity to adjust status while in the United States. Congress has not, however, extended this provision, whose future at this point is uncertain. Senate Begins Debate on Border Security Bill, Absent § 245(i), 79 Intemreter Releases 551, 551-53 (April 15, 2002). The Court cannot consider relief that does not exist. The INS suggests that Mr. Singh's marriage is not bona fide. Petitioner claims that there is a valid marital union. Even if Petitioner's claim is true, he has failed to pursue the immediate relative visa. Petitioner has also failed to identify any means by which the Court could grant him relief on the basis of his marriage in habeas proceedings.
CONCLUSION
Petitioner's continued detention is authorized by Zadvydas because his removal is significantly likely in the reasonably foreseeable future. Petitioner has failed to identify any other grounds of relief for which he is eligible. Respondents' motion to dismiss, (Dkt. No. 6), is GRANTED. Petitioner's § 2241 petition, (Dkt. No, 1), is DENIED and this action is DISMISSED.
The Clerk is directed to send copies of this order to all counsel of record and to Judge Benton.