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Zheng v. Chertoff

United States District Court, N.D. California
Nov 30, 2005
No. C-05-3657 SC (N.D. Cal. Nov. 30, 2005)

Opinion

No. C-05-3657 SC.

November 30, 2005


ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS


I. INTRODUCTION

Xiao Fei Zheng, a.k.a. Eddy Zheng ("Petitioner"), has filed a petition for a writ of habeas corpus ("Petition") under 28 U.S.C. § 2241, challenging his detention under § 236(c) of the Immigration and Naturalization Act, codified at 8 U.S.C. § 1226(c) ("Section 1226(c)"), which mandates the detention of certain criminal aliens until the completion of removal proceedings. The Attorney General has filed a return in opposition to the petition ("Ret."). Petitioner has filed a traverse in support of his petition.

The Court, having reviewed the parties' submissions on this matter, DENIES the Petition.

II. BACKGROUND

Petitioner, a native and citizen of China, entered the United States as a lawful permanent resident in November 1982 when he was thirteen. Petitioner's Points and Authorities in Support of the Petition for a Writ of Habeas Corpus at 3 ("Pet."). On November 10, 1986, in California state court, Petitioner pled guilty to eighteen criminal charges, sustaining an aggravated felony conviction. Id. at 4. He was sentenced to life with the possibility of parole for kidnapping to commit robbery and eight years for robbery of an inhabited dwelling. Id. Petitioner was released on parole on March 4, 2005, after having served nineteen years in California State custody. Id.

The sentences on the other counts were stayed. Pet. at 4.

The DHS, as mandated by 8 U.S.C. § 1226(c), took Petitioner, a criminal alien, into custody on March 10, 2005. Id. at 5. The following day, the Bureau of Immigration and Customs Enforcement of the DHS issued to Petitioner a Notice to Appear, charging him with being deportable for a violation of 8 U.S.C. § 1227(a)(2) (A)(iii) because he had been convicted of an aggravated felony.Id.

At the immigration hearing, Petitioner moved for a change in his custody status, requesting release on bond and contending that retroactive application of Section 1226(c), which Congress enacted ten years after his conviction, was impermissible. Pet. at 5. The Immigration Court denied Petitioner's request, declaring that Petitioner, having been convicted of an aggravated felony, fell under the authority of Section 1226(c). Id. The Board of Immigration Appeals affirmed the Immigration Court's order without opinion. Id.

Petitioner's wife, Susan Smith ("Smith"), in July 2005, filed with the DHS a Petition for an Alien Relative, seeking a visa on her spouse's behalf. Id. At the hearing, the Immigration Judge stated that it would take 18-20 months to adjudicate Smith's petition. Id. The Immigration Court has put over Petitioner's removal proceedings until it has ruled on Smith's petition. Id. Petitioner remains in custody with the DHS. Id. at 6.

In 1986, when Petitioner was convicted, 8 U.S.C. § 1252(a) (1986) — hereinafter "Section 1252(a)" — allowed the Attorney General, in his discretion, to arrest and take into custody any alien pending a determination of deportability. After taking custody of such a person, the Attorney General could have, in his discretion and pending determination of deportability, either continued to retain the person in custody, released the person on bond and under certain conditions, or released the person on conditional parole. Id. Any release could be revoked at any time. Id.

In 1996, Congress amended this and other immigration statutes, replacing Section 1252(a) with 8 U.S.C. § 1226. Currently, the Attorney General has discretion under Section 1226(a) whether to arrest an alien. In contrast, Section 1226(c), which applies to criminal aliens, removes this discretion. The statute mandates that the Attorney General must take into custody certain criminal aliens, such as Petitioner. Id. Section 1226(c) does not allow the Attorney General to release these aliens on bond or conditional parole. Id. III. DISCUSSION

Petitioner raises two contentions. First, he contends that the application of Section 1226(c) to his case is impermissibly retroactive. Pet. at 5. Second, in the alternative, he contends that mandatory detention for an unreasonable time violates his right to Due Process under the Fifth Amendment.

As stated above, after Petitioner's 2005 release from California state prison, the DHS took Petitioner into custody pursuant to Section 1226(c), which mandates the detention of individuals such as Petitioner. Petitioner now claims that it would be impermissible to apply Section 1226(c) to his case, under the presumption of retroactivity.

The Court finds that it would be a waste of judicial time and resources to grant the Petition and force Petitioner's custodians to exercise their discretion under the law as it stood at the time of Petitioner's convictions. If the Petition were granted, Petitioner's custodians would find their discretion fettered by Section 1226(c) which mandates they retain individuals such as Petitioner.

The Court is fully cognizant of the procedural steps one must take in testing the applicability of retrospective application of the instant statute. However, in the adjudication of the issues of this case, it appears that the reasonable and logical approach would be to be to broadly construe the statute's applicability in order to prevent a waste of judicial time and resources. Congress's language is bell-clear, broad, and unambiguous: the statute applies to "any alien" released after the statute's effective date.

Congress allowed the Attorney General to delay enforcement of § 1226(c) for up to two years if he thought that "there is insufficient detention space and Immigration and Naturalization Service personnel available to carry out section 236(c)." Pub.L. 104-108, Div. C, Title III, § 303(b), September 30, 1996, 110 Stat. 3009-586, section 2. After this period of delay, "the provisions of such section 236(c) . . . shall apply to individuals released after such periods." Id. At the latest, the statute would apply to aliens released during or after 1998. Because Petitioner was released in 2005, the statute applies to him.

The Court will not consider Petitioner's due process contentions, primarily because the length of his detention was extended because his spouse filed a petition on his behalf. One cannot justifiably oppose a detention whose extension was caused by a delay of one's making. The solution is clear: if Smith withdraws her petition, Petitioner's removal hearing will occur earlier.

IV. CONCLUSION

For the reasons discussed above, the Court DENIES the Petition.

IT IS SO ORDERED.


Summaries of

Zheng v. Chertoff

United States District Court, N.D. California
Nov 30, 2005
No. C-05-3657 SC (N.D. Cal. Nov. 30, 2005)
Case details for

Zheng v. Chertoff

Case Details

Full title:XIAO FEI ZHENG, a.k.a. EDDY ZHENG, Petitioner, v. MICHAEL CHERTOFF, in his…

Court:United States District Court, N.D. California

Date published: Nov 30, 2005

Citations

No. C-05-3657 SC (N.D. Cal. Nov. 30, 2005)