Le -v- Durfor, et al

Filing 3

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 5/7/2018. Signed by Judge Joseph C. Spero on March 6, 2018. (jcslc1S, COURT STAFF) (Filed on 3/6/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MINH DINH LE, Case No. 18-cv-00969-JCS Plaintiff, 8 v. ORDER TO SHOW CAUSE 9 10 STEVEN L. DURFOR, et al., Defendants. United States District Court Northern District of California 11 12 13 Petitioner Minh Dinh Le is in the custody of the U.S. Immigration and Customs 14 Enforcement (“ICE”). He is detained at the Yuba County Jail in Marysville, California. 15 Petitioner has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Section 2241. 16 Under 28 U.S.C. Section 2241, a district court may entertain a petition for a writ of habeas 17 corpus if the petitioner is in “custody in violation of the Constitution or laws or treaties of the 18 United States[.]” 28 U.S.C. § 2241(c)(3); Zadvydas v. Davis, 533 U.S. 678, 678 (2001) (“Section 19 2241 habeas proceedings are available as a forum for statutory and constitutional challenges to 20 post-removal-period detention.”). Courts should “award the writ or issue an order directing the 21 respondent to show cause why the writ should not be granted, unless it appears from the 22 application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 23 Summary dismissal is appropriate only where the allegations in the petition are vague or 24 conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 25 490, 491 (9th Cir. 1990). 26 Petitioner alleges that he is a native of Vietnam and that the Immigration Court in 27 Arlington, Virginia ordered his removal from the United States on March 24, 2015. He further 28 alleges that ICE has attempted to remove him to Vietnam, with his full cooperation, but that 1 Vietnam has not accepted him and that his detention is likely to be indefinite. Under Zadvydas, 2 “an alien’s post-removal-period detention [is limited] to a period reasonably necessary to bring 3 about that alien’s removal from the United States,” and may not be indefinite. Id. at 689; see also 4 Nadarajah v. Gonzales, 443 F.3d 1069, 1078 (9th Cir. 2006) (“[I]mmigration detention statutes do 5 not authorize the Attorney General to incarcerate detainees for an indefinite period. Rather, . . . the 6 statutes at issue permit detention only while removal remains reasonably foreseeable”). Petitioner raises the following claims for habeas corpus relief: (i) violation of the 7 8 Immigration and Nationality Act, 8 U.S.C. Section 1231(a)(6), because Respondents lack statutory 9 authority to detain Petitioner indefinitely; (ii) violation of Petitioner’s right to substantive due process; and 3) violation of Petitioner’s right to procedural due process. Liberally construed, the 11 United States District Court Northern District of California 10 claims appear colorable under 28 U.S.C. § 2241 and merit an answer from Respondents. For the foregoing reasons and for good cause shown: 12 13 1. 14 attachments thereto upon Respondents. The Clerk shall also serve a copy of this order on 15 Petitioner. 16 2. 17 this Order, an answer showing why a writ of habeas corpus should not be issued. Respondents 18 shall file with the answer and serve on Petitioner a copy of all portions of the administrative record 19 that are relevant to a determination of the issues presented by the petition. 20 3. 21 Court and serving it on Respondents within 30 days of his receipt of the answer. 22 23 24 25 The Clerk shall serve by certified mail a copy of this order and the petition and all Respondents shall file with the Court and serve on Petitioner, within 60 days of the date of If the Petitioner wishes to respond to the answer, he shall do so by filing a traverse with the IT IS SO ORDERED. Dated: March 6, 2018 ______________________________________ JOSEPH C. SPERO Chief Magistrate Judge 26 27 28 2

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