Rui Chang Zhao v. John F. Kelly et al

Filing 14

FINAL REPORT AND RECOMMENDATION issued by Magistrate Judge Karen E. Scott. IT IS THEREFORE RECOMMENDED that the District Judge issue an Order staying this action until July 15, 2017 (see document for details). (jdo)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 Case No. CV 17-777-BRO (KES) RUI CHANG ZHAO, Petitioner, v. JOHN F. KELLY, ET AL., Respondents. FINAL REPORT AND RECOMMENDATION STAYING PETITION UNTIL JULY 15, 2017 PENDING REMOVAL DEVELOPMENTS 16 17 18 19 This Final Report and Recommendation is submitted to the Honorable 20 Beverly Reid O’Connell, United States District Judge, pursuant to the provisions of 21 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the 22 Central District of California. 23 I. 24 INTRODUCTION 25 Petitioner is a detainee in the custody of the United States Immigration and 26 Customs Enforcement (“ICE”). On January 21, 2017, Petitioner filed a Petition for 27 Habeas Corpus by a Person in Federal Custody pursuant to 28 U.S.C. § 2241. (Dkt. 28 1.) Petitioner contends that he is being indefinitely detained in violation of 1 1 2 3 Zadvydas v. Davis, 533 U.S. 678 (2001). On March 29, 2017, Respondents filed an Answer to the Petition. (Dkt. 9.) Petitioner filed a reply on April 3, 2017. (Dkt. 10.) 4 II. 5 FACTUAL BACKGROUND 6 Petitioner is a citizen of China and has been a legal permanent resident in the 7 United States since 2004. (Dkt. 9-1 [Declaration of Deportation Officer Jeremy 8 Calcador].) On July 1, 2015, Petitioner was convicted in the Los Angeles County 9 Superior Court of possession of marijuana for sale. (Id.) On December 27, 2015, 10 Petitioner was served with a notice to appear charging him with removability due to 11 drug-related violations. (Id.) On January 28, 2016, an immigration judge ordered 12 Petitioner removed to China. (Id.) On February 29, 2016, Petitioner filed an appeal 13 of the immigration judge’s opinion, which the Board of Immigration Appeals 14 dismissed on May 23, 2016. (Id.) On June 3, 2016, Petitioner filed a petition for 15 review of the Board of Immigration Appeals’ decision with the Ninth Circuit. The 16 Ninth Circuit entered a temporary stay of removal. See Rui Zhao v. Loretta Lynch, 17 Case No. 16-71764, at Dkt. 1 (9th Cir.). Petitioner later moved to dismiss the 18 petition for review. The Ninth Circuit dismissed the petition and lifted the stay of 19 removal on July 8, 2016. Id. at Dkt. 9. 20 Since July 2016, ICE has been involved in regular communications with 21 China with regard to Petitioner’s travel documents. (Dkt. 9-1 at 2.) On July 26, 22 2016, Petitioner’s travel document request was mailed to the Consulate of China in 23 Los Angeles. (Id.) In August 2016, a deportation officer emailed the Chinese 24 consulate to enquire about the status of Petitioner’s travel documents. (Id.) The 25 Chinese consulate did not respond. (Id.) On September 8, 2016, the officer was 26 informed by the U.S. Headquarters Office of Removal and International Operations 27 28 2 1 (“Headquarters”)1 that China was currently reviewing cases for issuance of travel 2 documents. On September 13, 2016, the deportation officer emailed the Chinese 3 consulate, and again received no response. One week later the officer sent another 4 email, to which the Chinese consulate replied and “indicated that China was 5 verifying [Petitioner’s] status.” Id. at 2. In October 2016, the officer was informed 6 by Headquarters that an “Assistant Attache of Removals” in Beijing is “working 7 with [the] Government of China in Beijing on repatriation efforts.” Id. 8 From October 2016 to March 29, 2017, communications between the 9 deportation officer and the Chinese consulate followed the same pattern. The 10 officer would email the consulate approximately once a month inquiring about 11 Petitioner’s travel documents. If the consulate responded, they would only say that 12 China was “verifying [Petitioner’s] status.” See Id. at 3-4. Occasionally, 13 Headquarters would inform the officer that the Department of Homeland Security, 14 the U.S. Department of State, and the Assistant Attaché of Removals are “working 15 with [the] Government of China in Beijing on repatriation efforts” and on receiving 16 travel documents from China. Id. at 2-4. 17 III. 18 APPLICABLE LAW 19 A district court may issue habeas corpus relief where a petitioner 20 demonstrates that he or she is in custody in violation of the Constitution, laws, or 21 treaties of the United States. 28 U.S.C. § 2241(c)(3). Section 2241 confers 22 jurisdiction upon federal courts to consider challenges to the detention of aliens in 23 removal proceedings. See Demore v. Kim, 538 U.S. 510, 517-18 (2003); Zadvydas, 24 533 U.S. at 637. Although the READ ID Act of 2005, Pub.L.No. 109-13, Div. B., 25 26 27 28 1 Headquarters is responsible for assisting field offices in obtaining travel documents necessary to execute administratively final orders of removal. (Dkt. 9-1 at 2.) 3 1 119 Stat. 231 (May 11, 2005) eliminated district court jurisdiction over habeas 2 corpus petitions challenging final orders of removal, district courts retain 3 jurisdiction over section 2241 petitions challenging the legality of an alien’s 4 detention. See Nadarajah v. Gonzales, 443 F.3d 1069, 1075-76 (9th Cir. 2006). 5 “When a final order of removal has been entered against an alien, the 6 Government must facilitate that alien’s removal within a 90-day ‘removal period.’” 7 Thai v. Ashcroft, 366 F.3d 790, 793 (9th Cir. 2004) (citation omitted); 8 U.S.C. 8 § 1231(a)(1)(A). The removal period begins on the latest of the following: 9 (i) The date the order of removal becomes administratively final; 10 (ii) If the removal order is judicially reviewed and if the court 11 orders a stay of the removal of the alien, the date of the court’s 12 final order. 13 (iii) If the alien is detained or confined (except under an 14 immigration process), the date the alien is released from 15 detention or confinement. 16 8 U.S.C. § 1231(a)(1)(B); see also Khotesouvan v. Morones, 386 F.3d 1298, 1300 17 n.3 (9th Cir. 2004). During the 90-day removal period, continued detention is 18 required until the alien is actually removed. 8 U.S.C. § 1231(a)(2). Where removal 19 cannot be accomplished within the 90-day removal period, continued detention is 20 authorized by 8 U.S.C. § 1231(a)(6). 21 In Zadvydas, the Supreme Court held that 8 U.S.C. § 1231(a)(6) did not 22 authorize the Immigration and Naturalization Service (“INS”) to detain an alien 23 awaiting removal “indefinitely” beyond the statutory 90-day removal period. 533 24 U.S. at 689. Rather, the Supreme Court construed the statute to contain an implicit 25 “reasonable time” limitation. Id. at 682. The Court held that “the statute, read in 26 light of the Constitution’s demands, limits an alien’s post-removal-period detention 27 to a period reasonably necessary to bring about that alien’s removal from the United 28 States.” Id. at 682, 689. The Court determined that six months was a presumptively 4 1 reasonable period of detention. AR 701. “After this 6-month period, once the alien 2 provides good reason to believe that there is no significant likelihood of removal in 3 the reasonably foreseeable future, the Government must respond with evidence 4 sufficient to rebut that showing.” Id. If the Government fails to rebut the alien’s 5 showing, then the alien is entitled to relief. See e.g., Chun Yat Ma v. Asher, 2012 6 WL 1432229, at *5 (W.D. Wash. Apr. 25, 2012) (granting habeas relief and 7 ordering petitioner released from custody after eleven month delay in removing 8 petitioner to China). “For detention to remain reasonable, as the period or prior 9 postremoval confinement grows, what counts as the ‘reasonably foreseeable future’ 10 conversely would have to shrink.” Zadvydas, 533 U.S. at 701. 11 IV. 12 DISCUSSION 13 A. Petitioner’s Removal Order Became Final on July 8, 2016. 14 Petitioner contends that his removal order became final on May 23, 2016, 15 when the Board of Immigration Appeals dismissed Petitioner’s appeal. However, 16 the Court notes that Petitioner filed a petition for review in the Ninth Circuit, which 17 automatically stayed his removal pending resolution of the petition. The petition 18 was dismissed and the stay lifted on July 8, 2016. Pursuant to 8 U.S.C. 19 § 1231(a)(1)(A)(ii), Petitioner’s removal became final on July 8, 2016. See Prieto- 20 Romero v. Clark, 534 F.3d 1053, 1059 (9th Cir. 2008) (“The statute makes clear 21 that when a court of appeals issues a stay of removal pending its decision on an 22 alien’s petition for review of his removal order, the removal period begins only 23 after the court denies the petition and withdraws the stay of removal.”).Therefore, 24 Petitioner’s has been detained for approximately nine months following his final 25 removal order, exceeding the 90-day removal period set forth in 8 U.S.C. § 26 1231(a)(1) and the six-month presumptive period established in Zadvydas. 27 28 5 1 B. The Circumstances of This Case Do Not Warrant Granting Relief At 2 This Time. 3 Respondent contends that Petitioner has not met his burden of showing that 4 there is no significant likelihood of removal in the reasonably foreseeable future. 5 Respondent argues that Petitioner has not demonstrated that the government of 6 China has refused to issue travel documents. Rather, Respondent contends that 7 Petitioner “merely asserts that the ‘sheer length of his detention suggests that there 8 is no reason to believe that [ICE] will be able to remove him in the reasonably 9 foreseeable future.’” (Dkt. 9 at 4, citing Dkt. 1 at 6.) Respondent argues that “mere 10 delay in the issuance of a travel document is insufficient to show that there is ‘no 11 significant likelihood of removal in the reasonably near future,’ particularly where, 12 as here, efforts to obtain the travel document are ongoing.” Nasr v. Larocca, CV 16- 13 1673-VBF (E), 2016 WL 3710200, at *4 (C.D. Cal. June 1, 2016) (report and 14 recommendation), adopted 2016 WL 3704675 (C.D. Cal. July 11, 2016); see also 15 Iddrisu v. Kelly, SACV 17-0038-AFM, at *4 (C.D. Cal Mar. 27, 2017) (“Where the 16 evidence shows that the target country has granted (or is merely reviewing or 17 processing) an application for travel documents, federal habeas courts have 18 repeatedly found that an alien has failed to provide a good reason to believe there is 19 no significant likelihood of his removal in the reasonably near future). Respondent 20 contends that “although the process of obtaining travel documents in this case has 21 not gone smoothly, it is by no means over.” (Dkt 9 at 4.) 22 The Court disagrees with Respondent’s interpretations of Petitioner’s 23 arguments and the nature of the ongoing communications with China. Petitioner 24 does not argue that the “mere delay” in processing his travel documents is grounds 25 for relief. Rather, he contends that China’s communications demonstrate complete 26 uncertainty as to whether and when his documents will be approved. The record of 27 communications discussed above demonstrates that the Chinese government has 28 “failed to provide any substantive response” regarding Petitioner’s travel 6 1 documents since he was ordered removed. (See Dkt. 20 at 6.) At least some courts 2 have noted that it is appropriate to grant habeas relief “where there [is] no definitive 3 answer from the target county after several months as to whether it would issue 4 travel papers for a detainee.” Nsar, 2016 WL 3710200, at *3 (citing Nma v. Ridge, 5 286 F. Supp. 2d 469, 475 (E.D. Pa. 2003)); see also Kacanic v. Elwood, 2002 WL 6 31520362, at *3 (E.D. Pa. Nov. 8, 2002) (granting petition where petitioner was 7 detained for one year awaiting removal, and target county “ha[d] been unable to tell 8 the INS when a decision will be reached … [and] ha[d] never offered any reason 9 why obtaining travel papers in this case has taken longer than normal.”). Although 10 Petitioner has not yet been detained one year, China has not indicated if or when a 11 decision will be reached and has not explained the delay2. 12 This case is distinguishable from the cases Respondent cites in support of 13 denial. In Nsar, Lebanese officials did issue travel documents for petitioner well 14 within the presumptively reasonable removal period; it was apparently only because 15 of their lack of electronic compatibility that the petitioner was not promptly 16 removed. Nsar, 2016 WL 3710200, at *1. Even after that initial mishap, Lebanese 17 officials provided responses to ICE’s requests and demonstrated their intent to issue 18 documents in the correct format. Id. In Iddrisu, a Ghanaian official told ICE that a 19 “travel document for petitioner would be issued within a month,” providing a 20 clearly foreseeable deadline for removal. SACV 17-0038-AFM, at *4. 21 Respondent contends, “ICE is now working with the State Department and 22 another part of DHS to secure travel documents from China for aliens such as 23 Petitioner.” (Dkt 9 at 4-5.) General indications that U.S. agencies have been in 24 discussions with China regarding repatriation efforts do not indicate that those 25 26 27 28 2 An undue delay in removal for an individual alien beyond the typical removal period would naturally suggest that removal is unlikely. Chun Yat Ma, 2012 WL 1432229, at *5. Here, neither party has provided any data concerning how long removal of an alien to China typically takes. 7 1 discussions will result in the timely removal of Petitioner, as it is unclear whether 2 those efforts will be successful. There is reason to be skeptical, because Petitioner 3 attaches to his reply a declaration of a detention and deportation officer3 indicating 4 that in 2016, China issued 125 travel documents for U.S. detainees ordered 5 removed, and that the issuance rate is approximately 50%. (Dkt. 10-1 at 4.) 6 Petitioner contends that this demonstrates an unlikelihood that his travel documents 7 will be issued in the reasonable future. 8 Without more information regarding how China determines which requests 9 for travel documents to grant and how long the process typically takes, the Court 10 cannot conclude that Petitioner has shown his removal within the next few months 11 is unlikely. Even if China were to deny randomly 50% of all requests for travel 12 documents, that fact would not show that Petitioner’s request is more likely to be 13 denied than granted. 14 Despite the lack of a definitive answer from China, the length of Petitioner’s 15 confinement and the persistent efforts by U.S. deportation officials to obtain travel 16 documents do not support granting habeas relief at this time. Zadvydas made clear 17 that the reasonableness of continued confinement is measured on a sliding scale; 18 “the longer the detention stretches, the more imminent removal must be to justify 19 further confinement.” Zadvydas, 533 U.S. at 701. Petitioner has been held for 20 approximately three months beyond the presumptively reasonable period 21 established in Zadvydas. It is too early to conclude that removal efforts will not be 22 successful within the next few months. The Court notes that as the length of 23 Petitioner’s confinement grows, the Court is unlikely to find continued 24 communications like the ones occurring for the past nine months (i.e., short, 25 monthly emails) sufficient to rebut Petitioner’s claim that there is no significant 26 27 28 3 This declaration was filed in Yao Wen Mai v. Nancy J. Albi, Case. No. 16cv-02259-JDE as an attachment to Respondent’s answer. 8 1 likelihood of removal in the foreseeable future. 2 C. This Case Shall Be Stayed until July 15, 2017. 3 A trial court has the inherent authority to control its own docket and calendar. 4 See Landis v. North American Co., 299 U.S. 248, 254-55 (1936). This authority 5 includes entering a stay of the action before it pending developments in other 6 proceedings. See Leyva v. Certified Grocers of California Ltd., 593 F.2d 857, 863- 7 64 (9th Cir. 1979). It is noted, however, that “habeas proceedings implicate special 8 considerations that place unique limits on a district court’s authority to stay a case 9 in the interests of judicial economy.” Yong v. I.N.S., 208 F.3d 1116, 1120 (9th Cir. 10 2000). The Ninth Circuit has indicated that while a stay may be appropriate in 11 habeas cases, it had never “authorized, in the interests of judicial economy, an 12 indefinite, potentially lengthy stay in a habeas case.” Id. at 1120. The Court finds 13 that limiting this stay to three months with a specified end date respects the special 14 circumstances presented in a habeas proceeding. 15 Due to the conflicting factors discussed above, the Court finds that the most 16 appropriate course of action is to stay this case until July 15, 2017. 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 9 1 V. 2 RECOMMENDATION 3 IT IS THEREFORE RECOMMENDED that the District Judge issue an 4 Order: (1) staying this action until July 15, 2017, (2) setting the following briefing 5 schedule: Respondent shall file a status report every 30 days (the first being due on 6 May 15, 2017) detailing the diligent efforts undertaken to obtain Petitioner’s travel 7 documents or to obtain an estimated date by which China is expected to issue his 8 travel documents, and China’s responses thereto. After Respondent’s third status 9 report (due on July 15, 2017), Petitioner shall file a supplemental brief in support 10 of his Petition setting forth any additional arguments for granting habeas relief. 11 Respondent shall file a response within 20 days of service. 12 13 Dated: April 27, 2017 ______________________________ KAREN E. SCOTT United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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