Opinion
Civil Action No. 04-213.
June 22, 2004
REPORT AND RECOMMENDATION
Presently before this court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 by Ping Liu ("Liu"), an individual currently detained in the Montgomery County Correctional Facility in Norristown, Pennsylvania. As set forth more fully herein, I recommend that Liu's petition be denied.
I. FACTS AND PROCEDURAL HISTORY:
Liu is a native and citizen of the People's Republic of China.See Resp't Answer, at Ex. A. In August 1997, Liu entered the United States as a visitor and departed on November 9, 1997.Id. at 2. On January 16, 1998, Liu returned to the United States as a visitor and departed on an unknown date. Id. On December 28, 1998, Liu was paroled into the United States until December 28, 1999, pending an adjustment of status.Id.; see also Resp't Answer, at Ex. C.
The Attorney General has authority under 8 U.S.C. § 1182(d)(5)(A) to grant temporary immigration parole into the United States. This section stipulates that "such parole of such alien shall not be regarded as an admission of the alien." 8 U.S.C. § 1182(d)(5)(A); see also Sierra v. Romaine, 347 F.3d 669, 562 n. 4 (3d Cir. 2003). "The concept that aliens who are physically present within the United States but nonetheless technically are considered to be at the border is known as the `entry fiction' doctrine." Sierra, 347 F.3d at 562 n. 4 (citingRosales-Garcia v. Holland, 322 F.3d 386, 391 n. 2 (6th Cir.) (en banc), cert. denied 539 U.S. 941 (2003)).
On July 20, 1998, Liu's wife filed a petition on behalf of Liu for an adjustment of status. See Resp't Answer, at Ex. A, at 2. On August 29, 1999, the Immigration and Naturalization Service ("INS") denied the application because Liu's wife had withdrawn her petition on his behalf. Id.
The INS was incorporated into the Department of Homeland Security, on March 1, 2003. Liu v. Ashcroft, 2004 WL 906294, at *1 n. 2 (E.D. Pa. April 28, 2004); see also Resp't Answer, at 2 n. 1. INS responsibilities are now divided among the Bureau of Immigration and Customs Enforcement ("ICE"), the Bureau of Citizenship and Immigration Services, and the Bureau of Customs and Border Protection. Id. ICE is the agency responsible for carrying out Liu's removal. Id.
On July 9, 2001, Liu was convicted in the Supreme Court of the State of New York, County of Queens, of grand larceny in the third degree in violation of New York state law. Liu was sentenced to two (2) to six (6) years of imprisonment. See Resp't Answer, at Ex. A, at 2; Ex. C.
On October 10, 2001, the INS issued a Notice to Appear to Liu charging him with removability. See Resp't Answer, at Ex. B. Specifically, the INS charged Liu under § 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act ("INA") as an immigrant who, at the time of application for admission, was not "in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document." See Resp't Answer, at Ex. B; see also 8 U.S.C. § 1182(a)(7)(A)(i)(I). Liu was also charged under § 212(a)(2)(A)(i)(I) of the INA as "an alien who has been convicted of . . . acts which constitute the essential elements of a crime involving moral turpitude." See Resp't Answer, at Ex. B; see also 8 U.S.C. § 1182(a)(2)(A)(i)(I).
After holding a hearing on April 23, 2002, an Immigration Judge ("I.J.") ordered Liu removed to Taiwan, or in the alternative, to the People's Republic of China. In doing so, the I.J. rejected Liu's claim for deferral of removal under the Convention Against Torture. See Resp't Answer, at Ex. C. Liu appealed the I.J.'s decision to the Board of Immigration Appeals ("BIA"). On September 10, 2002, the BIA affirmed the decision of the I.J., thereby rendering that decision final. See Resp't Answer, at Ex. D. At the completion of his state prison term, Liu was placed in the custody of ICE on May 27, 2003. See Pet. at 3.
For clarification purposes, we note that mainland China is known as the "People's Republic of China," whereas Taiwan is known as the "Republic of China."
On November 6, 2003, a "Post Order Custody Review Worksheet" indicated that the Federal Bureau of Investigation ("FBI") wanted Liu released for "intelligence purposes." See Resp't Answer, at Ex. A. Although a conditional release was initially recommended, the FBI subsequently indicated that it had no further investigative interest in Liu's case. Id. Because Liu was considered "a significant flight risk," ICE recommended on February 4, 2004, that Liu should be detained pending the removal process. Id.; see also Resp't Answer, at Ex. E.
On February 4, 2004, Liu's case was transferred to the ICE Headquarters Post Order Detention Unit ("HQPDU") for review.See Resp't Answer, at Ex. F. On March 10, 2004, HQPDU concluded that Liu was a flight risk and ineligible for release from custody pending his removal from the United States. Id.
In the meantime, on January 20, 2004, Liu filed the instant petition for a writ of habeas corpus arguing that, because his removal from the United States is not imminent, his continued indefinite detention violates his statutory and constitutional due process rights.
II. DISCUSSION
A writ of habeas corpus can be granted to a petitioner who is "in custody under or by color of the authority of the United States . . . or . . . is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(1), (3). The Supreme Court has ruled that habeas corpus proceedings are an appropriate forum to challenge post-removal-period detention by the INS. Zadvydas v. Davis, 533 U.S. 678, 688 (2001). However, the scope of review of this court is confined to questions of constitutional and statutory law. See Bakhtriger v. Elwood, 360 F.3d 414, 424 (3d Cir. 2004).
Pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), aliens under a final order of deportation may be detained under the authority of 8 U.S.C. § 1231. Once removal becomes "administratively final," the Attorney General of the United States must attempt to secure an alien's removal within ninety (90) days. See 8 U.S.C. § 1231(a)(1) (the "removal period"). The removal period begins on the latest of: (1) the date the order of removal becomes administratively final; (2) the date of the court's final order if the removal order is judicially reviewed and if a court orders a stay of the removal; or (3) the date the alien is released from detention or confinement if the alien is detained or confined (except under an immigration process). Id. Detention of the alien during the statutory ninety (90) day period is mandatory.See 8 U.S.C. § 1231(a)(2) ("[u]nder no circumstances during the removal period shall the Attorney General release an alien who has been found inadmissible").
Because "securing an alien's actual removal within 90 days is not always possible," Sierra v. Romaine, 347 F.3d 559, 570 (3d Cir. 2003), Congress has provided that, at the conclusion of the ninety (90) day period, the alien may be released under the Attorney General's supervision pursuant to 8 U.S.C. § 1231(a)(3), or detained beyond the ninety (90) day removal period if he is "inadmissible under section 1182 of this title . . . or has been determined by the Attorney General to be . . . unlikely to comply with the order of removal." See 8 U.S.C. § 1231(a)(6). As previously noted, the INS has detained Liu because he has been deemed a "significant flight risk." See Resp't Answer, at Ex. A.
Liu argues that he is entitled to release from custody because his 90 day removal period has expired and he is currently subjected to an indefinite term of post-removal period detention while he awaits his removal to the People's Republic of China. He also points out that his current detention exceeds the presumptive maximum of six (6) months (or 180 days) mandated by the United States Supreme Court in its decision inZadvydas v. Davis, 533 U.S. 678 (2001), and implicitly found in 8 U.S.C. § 1231(a)(6).
Taiwan has advised the United States that they will not accept Liu in their country. See Resp't Answer, at Ex. A.
In Zadvydas, the Supreme Court addressed the question of whether the indefinite detention of two (2) lawful permanent resident aliens, who had been ordered removed because of their criminal convictions, violated due process and constituted an impermissible application of the Attorney General's statutory authority. Zadvydas, 533 U.S. at 688-99. After recognizing the due process rights associated with aliens who have gained entry into the United States, the Court held that § 1231(a)(6), when read in light of the Constitution's demands, does not permit indefinite detention. Zadvydas, 533 U.S. at 688-699 ("once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute"). As a result, the Court recognized six (6) months as a presumptively reasonable time of post-removal-period detention for resident aliens. Id. at 692-696. After the six- (6-) month period, once an alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must furnish evidence to rebut that showing. Id. at 699-701.
Liu argues that Zadvydas applies to his case because § 1231(a)(6) does not distinguish between an alien who has gained legal entry into the United States and one who is paroled into the United States, but rather categorizes both as "removable aliens." See Pet'r Traverse, at 5. As such, he argues that both categories of alien should be subject to the six- (6-) month presumption of reasonable detention. Id. In discussingZadvydas, the Third Circuit recently noted that there has been a division of opinion among the courts of appeals as to whether Zadvydas limits only the government's authority to detain resident aliens or whether it applies to all categories of aliens. Sierra, 347 F.3d at 571-572 (listing cases). After reviewing Zadvydas and subsequent caselaw, the Third Circuit held that Zadvydas limits only the government's authority to detain resident aliens. As a result, the court held that the Attorney General had the authority under § 1231(a)(6) to detain an unadmitted, inadmissible alien indefinitely and that the six- (6-) month presumption of reasonableness set forth in Zadvydas would not be applicable to such an individual. Sierra, 347 F.3d at 576.
The Supreme Court expressly extended the protections inZadvydas only to aliens who have "effected an entry into the United States." 533 U.S. at 693. In doing so, the Court noted that "[a]liens who have not yet gained initial admission to this country would present a very different question." Id. at 682.
The Third Circuit decision in Sierra governs the instant matter. Although Liu has been physically present in the United States for over five (5) years, the government never formally admitted him to the country, but rather paroled him into the United States. As in Sierra, Liu was paroled "because Congress has recognized that it is often appropriate to permit arriving aliens, such as [Liu], to make a temporary, unofficial entry into the United States pending the resolution of their applications."Sierra, 347 F.3d at 572. Liu's parole into the United Status as an unadmitted alien, however, does not alter his legal status. Id. As such, Liu is an inadmissible alien in a legal position similar to that of any other alien who has not gained entry and has been stopped at this country's border. Id.
Indeed, as the Third Circuit has noted "inadmissible aliens who never have been admitted into the United States never truly have resided in this country free from restraint." Sierra, 347 F.3d at 576 (citing Benitez v. Wallis, 337 F.3d 1289, 1301 (11th Cir. 2003)). "Rather, Congress has bestowed on them the luxury of parole while their immigration applications and status are finalized. To pervert this gift from Congress into a right after six [6] months not only would distort Congress's intent and potentially create grave security concerns for the people of the United States, but also would create needless difficulties in how the INS processes aliens." Id. (quoting Benitez, 337 F.3d at 1301).
Because Liu's indefinite detention does not violate Liu's due process rights or § 1231(a)(6), see Sierra, 347 F.3d at 576, we find that he is not entitled to habeas corpus relief. As a result, this petition must be denied.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of June, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DENIED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this ____ day of ____, 2004, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ for habeas corpus filed pursuant to 28 U.S.C. § 2241 is DENIED.
3. There is no basis for the issuance of a certificate of appealability.