Opinion
Case No. 02-70303
February 28, 2002
MEMORANDUM OPINION AND ORDER
I. FACTS
Petitioner, Veasna Lach, and his family migrated from Cambodia in 1979, when he was seven years old. On July 24, 1984, he was admitted to the United States as a legal permanent resident. According to his Petition, he has family in Santa Ana, California and Holland, Michigan.
On August 20, 1991, Petitioner was convicted of Assault with a Firearm and Exhibiting a Firearm at a Car and sentenced to two years by the Superior Court of California. He was released on parole from the California Department of Corrections in 1992 and was discharged from parole in 1994. These convictions rendered Petitioner removable from the United States pursuant to 8 U.S.C. § 1227 (a)(2)(A)(iii).
On July 16, 2001, Petitioner claims he was arrested in Michigan for probation violation and he served 45 days. On August 23, 2001, The Immigration and Naturalization Service ("INS") issued a warrant for his arrest and, after serving his sentence, he was released into INS custody for violating immigration laws. Petitioner was ordered removed from the United States on October 13, 2001 based upon the felony convictions and held in INS custody. The INS subsequently notified Petitioner that Cambodia refused to issue travel documents for him. Petitioner filed this habeas petition on January 24, 2002, seeking release from INS custody claiming his continued detention violated his constitutional rights because it is unforeseeable that Petitioner will be removed to Cambodia.
According to Respondent, following the entry of this Petition, the Petitioner's custody status was reconsidered. After reconsideration, he was released from INS custody on February 5, 2002 subject to some notification requirements. Respondent filed an Answer to the Petition on February 8, 2002 informing the Court of Petitioners release from INS custody and requesting the Court to dismiss the Petition as moot.
II. ANALYSIS
Petitioner Lach alleged that INS custody subsequent to issuance of the removal order and beyond the detention period authorized by 8 U.S.C. § 1231(a)(6) of the Immigration and Nationality Act was unconstitutional. He seeks release from INS custody pursuant to the decision of the U.S. Supreme Court in Zadvydas v. Davis, 121 S.Ct. 2491 (2001).
The federal courts have jurisdiction to consider challenges to the lawfulness of immigration related detention in habeas proceedings.Zadvydas, 121 S.Ct. at 2496-97. The district court has the power to grant a writ of habeas corpus in accordance with 28 U.S.C. § 2241 which provides in pertinent part:
(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions . . . (c) the Writ of habeas corpus shall not extend to a prisoner unless (1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof . . .
After entry of a final removal order a removable alien must be held in custody during a 90-day "removal" period. 8 U.S.C. § 1231(a)(2). During this removal period, detention is authorized for a period reasonably necessary to accomplish the alien's removal from the United States. If the alien is not removed during this period, detention may be continued. 8 U.S.C. § 1231(a)(6). However, detention of an alien in the post-removal period may not be indefinite. Zadvydas, 121 S.Ct. at 2498. If removal of the alien is not reasonably foreseeable, continued detention is unreasonable and not authorized by statute. Id. at 2503. Detention for a period of up to six months may be considered presumptively reasonable. However, continued custody depends upon whether there is a "significant likelihood of removal in the foreseeable future."Id. at 2504.
On February 5, 2002, Petitioner was released from INS custody since his removal to Cambodia did not appear reasonably foreseeable. A Writ of Habeas Corpus requires that a Petitioner be in the custody of the United States. See 28 U.S.C. § 2241. Since Petitioner Lach was released from custody of the INS on February 5, 2002, this Court has no authority to review the Petition.
III. CONCLUSION
Pursuant to the reasons set forth above, accordingly,
IT IS ORDERED that Petitioner's Petition for Writ of Habeas Corpus (Docket No. 01, filed January 24, 2002) is DISMISSED.